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TMI Blog2018 (1) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Bharat Sanchar Nigam Ltd. Versus Commissioner of C. Ex., Chandigarh-I [2016 (8) TMI 1284 - CESTAT, CHANDIGARH] - credit allowed. Rent-a-cab services - Outdoor catering services - Air Travel Agent services - tour operator service - denial of credit is not due to non-availability of documents - Held that: - we are not fully satisfied with the details on the basis and the purposes of such credit and accordingly we are in agreement with the lower authorities in denying them in the absence of any contrary evidence produced by the appellant to establish their eligibility for the same. Extended period of limitation - penalty - Held that: - Admittedly, the dispute is one involving legal interpretation and difference of opinion. In such circumstances, it is not tenable to invoke ingredients of Section 73 proviso for confirming the demand for extended period as well as imposing penalties. Appeal allowed in part. - ST/Misc/41091/2017 & ST/253/2010, ST/Misc/41092/2017 & ST/254/2010 ST/255/2010 ST/256/2010 ST/257/2010 ST/258/2010 ST/699/2011 ST/700/2011 ST/701/2011 ST/702/2011 ST/40120/2017 ST/40121/2017 ST/40122/2017 ST/40123/2017 - Final Order No. 40194-40207 / 2018 - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the ld. Counsel that substantial amount of credit is with reference to erection and construction services. The appellants are telecom operators and telecommunication towers are essential infrastructure for them to provide such services. Creation of such tower by paying service tax on such erection is an essential input service activity. Relying on the statutory definition of Rule 2(l) of Cenvat Credit Rules, 2004, he submitted that the appellants are eligible for such input service credit under the main part of the definition without any reference of any other provision for support. In other words, it is the claim of the appellant that input services in the present case being a service used by a service provider for providing a taxable service is covered under Rule 2(l) (i) during the relevant time, without drawing support from inclusive part of the definition which incidentally specifically mentions the services used in relation to setting up of premises of provider of output service. He submitted that substantial portion of the credit now being denied in various proceedings are with reference to credits pertaining to the period prior to 1.4.2011 on which date the statutory defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igibility of input services credit on various input services, Ld. A.R submitted that as held by the original authorities the creation of immovable asset in between will be precluding the appellant from availing the credit on such services. In other words, there is no direct nexus between the erection and construction services of tower which results in the creation of tower and telecommunication services provided by them. The immovable civil structure is created by such input service and such civil structure is not subject matter of taxability of the goods or services. In other words, it is the case of the Revenue that ratio as applied to credit on inputs and capital goods should be applied to input services also. Further, on other input services, he submitted that they appellants have not established direct nexus of these services to the telecom service which is their output service. 10. We have heard both sides and perused appeal records. 11. On the first issue, both the sides agree that the matter is no more res integra as the Hon ble Bombay High Court in Bharti Airtel Ltd. (supra) as well as Larger Bench decision in Tower Vision India Pvt. Ltd. (supra) held that cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax paid on services utilized for erection of tower..... 13. The said ratio has been followed in BSNL Vs CCE Chandigarh - 2017 (47) STR 246 (Tri.-Chan.) . Accordingly, following the ratio already laid down, we hold that input service credit on erection of telecommunication towers are eligible for the appellant. 14. Regarding various other input services like Rent-a-cab, Outdoor catering, Air Travel Agent, tour operator, we note that plea of the appellant is that these are directly used by the appellant in connection with providing telecom service. Ld. Counsel submitted that they have produced all the supporting evidence, invoices before the original authority for scrutiny. The denial of credit is not due to non-availability of documents. The denial is on legal principle that these are not input services. In principle we agree with appellants that since these services have been availed by the appellant in the course of their business of providing telecom services and the same should be eligible for them. Certain miscellaneous amounts have been disallowed on other expenses like Authorized Service Station service, Business Auxiliary Service and ineligible documents. On ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of ₹ 6,90,51,921/- for the normal period is not hit by limitation, (for the period 10/2007 to 09/2008) will sustain and is upheld. Penalty imposed on the appellant under Rule 15 (4) of the CENVAT Credit Rules, 2004 read with section 78 of the Finance Act, 1994 is also set aside. Appeal disposed of on above terms with consequential reliefs, if any. Similar view is taken by Bombay High Court in Vodafone Essar Cellular Ltd. 2018-TIOL-124-HC-MUM-CX and by Tribunal in FASCEL Ltd. - 2017 (52) STR 434 (Tri.-Ahmd.) 16. Accordingly, in view of the above discussion and analysis, we hold that demand wherever raised will be restricted to the normal period with no penalties. 17. In view of the above discussion and analysis, we uphold the denial of credit on inputs / capital goods used in the creation of various telecommunication towers. The credits on input services to the extent as discussed above are allowed. The demand wherever is sustained consequent on denial of credit shall be restricted to normal period with no penalties. Appeals are disposed of in the above terms. The MAs filed by Revenue for change of cause title are allowed. ( Dictated and pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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