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TMI Blog2018 (9) TMI 1646X X X X Extracts X X X X X X X X Extracts X X X X ..... se goods had independent functions and hence, they cannot be treated and classified as single unit. It also observed that all goods are not eligible for credit and only those relatable to output services would be eligible for credit. Since the towers merely enabled the antennae to function, they did not enter the composition of the antenna themselves and could not be construed as components or parts thereof. Further, only telecom equipments like BTS transmitters which are used in providing telecom services alone would be liable to input credit. The towers and PFB are in the nature of immovable goods hence, ITC not admissible on the same. If the goods are movable from one place to another in the same position or liable to be dismantled and re-erected at the later place, if it is liable to be shifted and was dismantled or re-erected at a later place, it will be movable property. But if erected permanently with out being shifted from place to place, then it would be treated as permanently attached to the earth and the same will be treated as immovable property - thus, “telecommunication tower” does not come within the purview of goods in as much as the same being a immovable pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on matters or on questions specified in sub section (2) of section 97 or sub section (1) of section 100 in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. 3. As per Section 97(2)(d) of CGST/ SGST Act, 2017 the advance ruling can be given on admissibility of input tax credit of tax paid or deemed to have been paid . In the present case applicant has sought advance ruling in respect of admissibility of input tax credit (hereinafter referred to as ITC) of goods and services used for erection of infrastructure to which fibre cables are connected for leasing to Telecommunication Operators. Therefore, in terms of said Section 97(2)(d) of CGST/ SGST Act, 2017, the present application is hereby admitted. 4. Accordingly opportunity of personal hearing was earlier granted on 14.06.2018 and the applicant attended the hearing. That time the authority had Shri Anil Singh, Joint Commissioner, SGST and Shri Amit Gupta, Joint Commissioner, CGST were members. Since Shri Anil Singh, has been promoted and transferred, therefore fresh PH has been given to the applicant on 01.08.2018 and 13.08.2018 and the applicant had sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ephony to proceed uninterrupted as the subscriber is mobile. In contrast, the passive infrastructure comprises the elements which enable the active infrastructure to operate as described above. 6.4 A telecommunication/cell tower houses the electronic communications equipment along with an antenna to support cellular communication in a network. A cell tower is usually an elevated structure with the antenna, transmitters and receivers located at the top. A cell tower also known as cellular tower or cell site. The primary function of a telecommunication/cell tower is to ensure proper elevation to antennas that receive and transmit radio-frequency signals from cell phones and other devices. There are different types of telecommunication/ cell phone towers viz. Monopole, Lattice, Guyed. The details of the same are as under: (a) Lattice Tower - also referred to as a self-supporting tower. The lattice tower affords the greatest flexibility and is often used in heavy loading conditions. A lattice tower is typically three or four sided, with similar shaped bases. (b) Monopole Tower - A monopole tower is a single steel or concrete tube tower. It requires one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: a. The poles used in the infrastructure are hollow and does not contain any fibre inside. b. GI Support erected is also hollow, from which fibres arc passed. c. The height of pole is 7m while in exceptional cases it is 9m. d. The pole along with muff installation can be removed using civil work without any damage to the entire infrastructure. After removal of the said infrastructure, it can be used easily at another location without any damage to the fibre connected to the structure or the structure as a whole. 6.8 To appreciate the law position in this regard, first we have to go through the provisions of Input Tax Credit of CGST/SGST Act, 2017 and the relevant portion of the same are reproduce below: 16. (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person. 17 (5) Notwithstanding an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f) goods or services or both received by a non-resident taxable person except on goods imported by him; (g) goods or services or both used for personal consumption; (h) goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples; and (i) any tax paid in accordance with the provisions of sections 74, 129 and 130. 17(6) The Government may prescribe the manner in which the credit referred to in sub-sections (1) and (2) may be attributed. Explanation . For the purposes of this Chapter and Chapter VI, the expression plant and machinery means apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes- (i) land, building or any other civil structures; (ii) telecommunication towers; and (iii) pipelines laid outside the factory premises. 6.9 The explanation (supra) put restrictions on availment of cenvat credit in respect of apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat (Through Secretary). = 2013 (4) TMI 904 - GUJARAT HIGH COURT . The relevant portion of the same is reproduce below: 5. The petitioner is a company registered under the Companies Act. The petitioner is engaged in providing infrastructure for Mobile Telecommunication Services. The petitioner enjoys necessary license and registration issued by the competent authority under the Indian Telegraph Act, 1885. For providing such infrastructure to its customers, the petitioner company is required to install Base Transceiver Station ( BTS for short), more commonly known as mobile towers . For setting up such mobile towers, the petitioner enters into agreements with private owners. Armed with such agreements, the petitioner would apply to the local authorities for permission to erect such a structure. As pointed out by the petitioner in the petition, such structure consists of the following : a. A pre-fabricated shelter made of insulating PUF material made of fibers. b. Electronic Panel. c. Base Transceiver Station(BTS) and other radio transmission and reception equipment. d. A diesel generator set. e. Six poles of 6 to 9 meters length each made of hollo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation versus GTL Infrastructure Ltd. ors. = 2016 (12) TMI 1092 - SUPREME COURT also confirm the fact of hon'ble Gujarat High Court (supra). The relevant portion of the same is reproduce below: 22. We may now see what a Mobile Tower is and consists of. In technical terms a Mobile Tower is called a Base Transceiver Station. It involves the making of structure consisting of the following: a. A pre-fabricated shelter made of insulating PUF material made of fibres. b. Electronic Panel. c. Base Transceiver Station (BTS) and other radio transmission and reception equipment. d. A diesel generator set. e. Six poles of 6 to 9 meters length each made of hollow steel galvanized pipes. 6.14 In light of above we observe that the telecommunication towers are used for hoisting e antennae to predetermined and technically viable heights for optimum coverage of the cellular network. The towers are typically erected at the site and also comprise poles for mounting the antennae, sheIters and housing for electrical and telecom equipment. Telecommunication Towers are in the nature of immovable property and are consists of a. A pre-fabricated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd re-erected at the later place, if it is liable to be shifted and was dismantled or re-erected at a later place, it will be movable property. But if erected permanently with out being shifted from place to place, then it would be treated as permanently attached to the earth and the same will be treated as immovable property. 6.20 Thus we observe that telecommunication tower does not come within the purview of goods in as much as the same being a immovable property and the ITC on telecommunication tower is not admissible as per explanation to Section 17(6) of the CGST/SGST Act, 2017. 6.21 In view of the above discussion we observe that the infrastructure provided by the applicant is different from Telecommunication Tower in as much as (i) the in infrastructure provided by the applicant does not contain in a. pre-fabricated shelter made of insulating PUF material made of fibres; b. electronic Panel; c. Base Transceiver Station (BTS) and other radio transmission and reception equipment ; d. diesel generator set; (ii) the infrastructure is not a immovable property as it can be easily be moved to another place for use without any damage to the entire infrastr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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