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TMI Blog2019 (1) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... buildings/shelters, etc., used for housing, storage of generator sets and other equipments treating the above-mentioned goods as capital goods. The CENVAT credit was utilized for payment of service tax on telecommunication services. Since the transmission towers and prefabricated buildings/shelters cannot be called as excisable goods, being attached to earth and not being chargeable to Central excise duty, the inputs used in the construction of these structures are ineligible to CENVAT credit. On 31st May 2015, the Superintendent of Service Tax, having jurisdiction over the appellant at that time, through the letter O.C. No.203/2010 requested the appellant to furnish the details of CENVAT credit taken in respect of goods like angles, channels and beams, etc. The appellant through their letter dated 23rd June 2010 informed that they have not availed any CENVAT credit on the above-mentioned items during the year 2009-10 since the tower infrastructure was looked after by M/s. Indus Tower Ltd. The appellant through their letter dated 26th September 2014 in response to letter dated O.C. No.485/2014 dated 22nd August 2014 of the Superintendent of Central Excise, Kalamassery Range, furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisable commodity when received. This decision has been upheld by the recent decision of the Hon'ble High Court of Delhi in appellant's own case reported in 2018-TIOL-2409-HC-DEL-ST. She also submitted that Delhi High Court has considered the decision of Bharati Airtel Ltd. vs. CCE, Pune-III: 2014 (35) STR 865 (Bom.) and distinguished the same on the ground that the said decision proceeded on the wrong presumption that the goods in question are immovable property and accordingly, the 'permanency test' as laid down by the Hon'ble Supreme Court in Solid and Correct Engineering reported in 2010-TIOL-25-SC-CX was not applied by the Hon'ble Bombay High Court. She also submitted that the instant proceedings is completely barred by limitation in terms of proviso to Section 73 of the Finance Act, 1994 as the issue involved i.e., eligibility of credit on towers, shelter, prefabricated structures, etc., is of interpretational nature and various decisions based on the same set of facts including the appellant's own case reported in 2018-TIOL-1169-CESTAT-BANG for the previous period have categorically held that extended period could not have been invoked in such cases. Further, the availabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Service Tax, Pune vs. M/s. Vodafone Essar Cellular Ltd.: 2018-TIOL-124-HC-MUM-CX (x) Vodafone Essar South Ltd. & Others vs. CST, Chennai: 2018-TIOL-2305-CESTAT-MAD. (xi) M/s. Vodafone Essar Digilink Ltd. vs. CCE, Panchkula: 2018-TIOL-669-CESTAT-CHD. 5. On the other hand, the learned AR defended the impugned order and submitted that the impugned goods are not CENVATABLE inputs for providing telecom services. The said goods are used for making products like towers, housing/storage units, which cannot be called as excisable goods being attached to earth and are not chargeable to duty. The learned AR relied upon the decision of Bombay High Court in the case of Bharati Airtel Ltd. vs. CCE: 2014 (35) STR 865 (Bom.) wherein this issue was decided in favour of the Revenue. He further submitted that the extended period has been rightly invoked as the appellants were issued with a show-cause notice for previous period and they had prior knowledge that credit was not admissible but still they deliberately suppressed the information. 6. After considering the submissions of both the parties and perusal of the material on record, I find that in the present case, the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, it has been categorically held that the demand can only be confirmed for normal period and extended period of limitation has been dropped. Consequently all the penalties have also been dropped. In view of the various decisions settling the issue, we are of the considered view that the issue in the present appeals was of an interpretation nature i.e. as to the eligibility of CENVAT credit or otherwise on the towers and building and had to be settled in the hands of the High Court. Therefore, the appellant could have entertained a bona fide belief. Hence all the penalties imposed on all the appellants herein are set aside by invoking the provisions of Section 80 of the Finance Act, 1994." 6.1 Further, I find that the Division Bench of the Tribunal at Hyderabad in the appellant's own case cited supra has held in para 6 has under: "6. However on the matter of penalty we find that the issue is interpretational in nature. Concerning the eligibility of credit on the parts used in the towers, there has been sufficient confusion in the matter. It is also not disputed that there was more than one view in the matter and hence following the ratio laid down in Hon'ble Apex Courts j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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