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TMI Blog2024 (10) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... of employees for official purposes like business meets, sales advertisement campaigns, etc., are also meant for furtherance of business. Hence, the CENVAT Credit availed on such services is also eligible as 'input service'. There are no more res integra as the Tribunal, Bangalore in the case M/S. ROBERT BOSCH ENGINEERING BUSINESS SOLUTIONS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX BANGALORE-LTU [ 2016 (12) TMI 812 - CESTAT BANGALORE] has allowed the credit on such services as input services . CENVAT Credit on travel/journeys performed by employees for business purposes - CENVAT Credit on services used for transportation, procurement, and filling of diesel for DG sets at cell sites - HELD THAT:- During the underlying period, the Appellant have outsourced the said activity of performing Operations Maintenance to service providers who were responsible to ensure upkeep of cell site including the DG sets . Diesel is always required for the running the DG sets. Thus, as a part of providing operations maintenance services, the service providers procured, transported and filled diesel in the DG sets to ensure their continuous operation and sustenance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R SHRI K. ANPAZHAKAN ] The present appeal has been filed against the Order-in-Appeal No. 20/SH/CE(A)/GHY/2014 dated 25.09.2014 (hereinafter referred to as impugned order , passed by Ld. Commissioner (Appeals), Guwahati. 2. The facts of the case are that the appellant is engaged in the business of rendering taxable services under the category of telecommunication services. During the underlying period, the Appellant availed CENVAT Credit of inputs, capital goods and input services used in the course of furtherance of their business. 2.1. During the course of Departmental audit of the records of the Appellant for the period from July 2009 to January 2011, the audit team made certain observations regarding availment of CENVAT Credit by the Appellant. On the basis of those observations, a Show Cause Notice dated 21.05.2013 was issued to the appellant, alleging that the Appellant had wrongly availed CENVAT Credit on the following inward supplies: a. Services used for transportation of household goods of its employees from July 2009 to November 2010 b. Travel/ journeys performed by the employees from May 2009 to September 2011 c. Services used for transportation, procurement and filling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisement campaigns, etc., are meant for furtherance of business and hence, the CENVAT Credit availed on such services is eligible as 'input service'. In this regard, the appellant placed their reliance on the following decisions: a. Zuari Cement Ltd. v. Commr. of CT, Tirupati -GST, [2019 (11) TMI 47 - CESTAT Hyderabad] b. Robert Bosch Engg. Business Solutions Ltd. CCE ST, Bangalore-LTU [2017 (51) S.T.R. 329 (Tri.-Bang.)] c. Ivy Comptech Pvt. Ltd. v. CCE, Cus. ST, Hyderabad-II [2016 (42) S.T.R. 66 (Tri. - Bang.)] 4.1. Therefore, the Appellant contends that they are entitled to avail CENVAT Credit on the underlying services. CENVAT Credit on diesel transportation, procurement and filling services used in respect of DG sets at cell sites: 5. Regarding the CENVAT Credit on diesel transportation, procurement and filling services used in respect of DG sets at cell sites, the appellant submits that at the cell site, uninterrupted power supply is required to effectively provide telecommunication services to the subscribers; that accordingly, DG sets are installed at the cell site as a part of passive infrastructure of the cell sites, which run on diesel. During the underlying perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit availed on shelters qualifies as passive infrastructure in telecommunication business : 6. Regarding CENVAT credit availed on shelters, the Appellant submits that the same qualifies as passive infrastructure in telecommunication business. The Appellant submits that in order to develop a cell site i.e. telecom infrastructure to provide telecommunication services, the Appellant is required to arrange active and passive infrastructure to fix their antenna and set up the BTS, etc; the subject goods i.e., tower materials, shelters of steel structure, etc., received by the Appellant are accessories to Base Transceiver Station (BTS), which falls under heading Chapter 85 of Central Excise Tariff Act, 1985 (CETA) and therefore, qualify as eligible capital goods in terms of Rule 2(a)(A)(i) of the Credit Rules. It is submitted that BTS is one of the core parts of the cell site i.e. telecom infrastructure; the main function of BTS is to transmit and receive the global system of mobile communication for transmitting and receiving frequency. The appellant also submits that shelters and other components together makes the telecom infrastructure in a workable condition; thus this equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation is not invokable. The appellant therefore submits that where the principal demand itself is not sustainable, the ancillary demands for interest and penalty are liable to be set aside. 8. In view of the above, the appellant prayed for setting aside the demands confirmed in the impugned order and allow the appeal filed by them. 9. The Ld. Authorized Representative of the Revenue reiterated the findings in the impugned order. 10. Heard both sides and perused the appeal documents. 11. We observe that regarding the services used for transportation of household goods of employees, it was alleged in the Notice that the said services were used primarily for personal use and were not used by the Appellant for furtherance of their business. It is seen that during the period under dispute, the definition of the term input services was very wide and it covered all the' input services' used in or in relation to the business. Thus, we observe that CENVAT Credit availed on services used for transportation of household goods of employees, are input services for the appellant and they are eligible for the credit of service tax paid on such transportation services. Similarly, servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansportation and filling, the service providers charged service tax to the Appellant under the head Business Support Services. We observe that at the cell site, uninterrupted power supply is required to effectively provide telecommunication services to the subscribers. Thus, we hold that the said services are 'input services' for the Appellant for rendering their output services. In view thereof, we hold that the appellant are eligible for the CENVAT Credit availed on these input services . 12.1. Regarding the denial of CENVAT Credit on the Prefabricated buildings used as shelters for the period from October 2008 to June 2012, we observe that the subject goods i.e., tower materials, shelters of steel structure, etc,. received by the Appellant are accessories to Base Transceiver Station (BTS), which falls under heading Chapter 85 of Central Excise Tariff Act, 1985 (CETA). It is seen that BTS is one of the core parts of the cell site i.e. telecom infrastructure. The main function of BTS is to transmit and receive the global system of mobile communication for transmitting and receiving frequency. Shelters and other components together makes the telecom infrastructure in a work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y BTS and antennae. The pre-fabricated shelters are therefore inputs as per rule 2(K) of the Cenvat credit Rules. (viii) The eligibility to claim credit on inputs is to be determined at the time of receipt of goods in terms of Rule 4(1) of the Credit Rules. The definition of inputs does not contain any condition relating to emergence of immovable property to be ineligible for taking credit. (ix) Towers which are received CKD condition, are assembled/eracted at the site subsequently giving rise to structure that remains immovable till its use for safety, stability and commercial reasons cannot be disentitled for credit. The fact that goods are later on fastened to earth cannot make them non-excisable. (x) Further that, in any case, immovability cannot determine eligibility to avail credit Emergence of immovable property in the intermediate stage also cannot disentitle the Assessee-Appellant's eligibility to avail credit. therefore we hold that the assessee-appellant are entitled to avail cenvat credit on items, towers, shelter parts thereof being input used for providing output service. In these circumstances, we dismiss the appeal filed by the Revenue and allow the appeals file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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