9911796707
TMI Blog2024 (8) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... ould qualify as inputs under rule 2(k) of the CENVAT Rules and they would also be capital goods and, therefore, credit could be taken. In view of the aforesaid decision of the Tribunal in Vodafone Mobile Services, the impugned order passed by the Commissioner (Appeals) deserves to be set aside and is set aside. Appeal allowed. - MR. DILIP GUPTA, PRESIDENT AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Om P. Agarwal, Chartered Accountant for the Appellant Shri Anand Narayan, Authorized Representative of the Department ORDER This appeal that has been filed by M/s GMTD Bharat Sanchar Nigam Limited, Udaipur [the appellant] seeks the quashing of the order dated 11.07.2018 passed by the Commissioner (Appeals), Central Excise and CGST, Jodhpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such credit by not disclosing the same to the department and so the extended period of limitation was invocable. Penalty was also proposed to be imposed on the appellant. 5. The appellant submitted a reply and denied the allegations made in the show cause notices and stated that the goods in question were parts and components of base trans receiver station (BTS) , base station controller (BSC) and mobile switching centre (MSC), which are tower materials. Thus, such tower materials would qualify to be capital goods under CENVAT Rules. The appellant, in the alternative, claimed that since the tower materials are inputs used for providing of telecommunication services, they would be covered under the definition of inputs under the CENVAT R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility of the appellant to claim CENVAT credit on tower, tower material, shelter, input services for the period from October, 2004 to March, 2012 and April, 2014 to March, 2015. ***** ***** 23. The alternative argument of learned counsel for the appellant that towers and shelters would also qualify as inputs under rule 2(k) of the 2004 Rules was also examined by the Delhi High Court in Vodafone Mobile Services and it was held that : 53. On examination of the definition and the decisions, the Court is of the considered opinion that the term all goods mentioned in Rule 2(k) of the Credit Rules would cover all the goods used for providing output services, except those which are specifically excluded in the said Rule. Therefore, the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit Rules. The CESTAT has erred in holding that there is no nexus between the inputs and the output service. The CESTAT also failed to consider the decision of the AP High Court in case of M/s. Indus Towers Ltd. v. CTO, Hyderabad - (2012) 52 VSR 447, which clearly ruled that the towers and shelters are indeed used and are integrally connected to the rendition of the telecommunication services . (emphasis supplied) 24. Another alternative submission advanced by the learned Counsel for the appellant that the items in dispute are capital goods and, therefore, credit was correctly taken as capital goods also deserves to be accepted. 25. The Delhi High Court in Vodafone Mobile Services had also examined this issue and the observations are as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the hearing of the appeals that the towers are structures installed to support GSM and microwave antennae. These antennae receive and transmit signals and are used for providing output service. Without them, the antennae cannot be installed high above the ground and cannot receive or transmit signals. Therefore, the towers too have to be considered as essential component/part of the capital goods, namely BST and antennae. Further, BTS is an integrated system and each component in the BTS, have to work in tandem to provide cellular connectivity to phone users and to provide efficient services. In the facts of the present case, it is evident that the towers form part of the active infrastructure as the antennae cannot be placed at that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. This decision of the Delhi High Court in Vodafone Mobile Services has also been followed by the Tribunal in following decisions: i. Bharti Hexacom Limited vs. Commissioner of Central Excise and Customs, Central Goods and Service Tax, Jaipur-I (ST Appeal No. 50835 of 2017 decided on 25.05.2021); ii. Bharti Airtel Limited vs. CCE ST Gurgaon-II (ST Appeal No. 55383 of 2013 decided on 03.09.2019); iii. CCE Gurgaon-II vs. Bharti Infratel Ltd. (ST Appeal No. 52951, 52377-52378 of 2015 decided on 21.02.2019); iv. Bharti Infratel Limited vs. Commissioner of Service Tax, Delhi IV (ST Appeal No. 52382 of 2015 decided on 22.05.2019); and v. Reliance Jio Infocomm Ltd. (emphasis supplied) 12. The aforesaid decision of the Tribunal in Vodafone Mobile ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
