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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 ..... 09 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 of diesel for the period from April 2011 to December 2011 d. Prefabricated buildings used as shelters for the period from October 2008 to June 2012, treating them as capital goods. 2.2. The said Notice was adjudicated by the Ld. Additional Commissioner vide Order-in-Original dated 21.10.2013, wherein he has confirmed the demands raised in the Notice. On appeal, the Ld. Commissioner (Appeals) upheld the demands confirmed in the Order-in-Original, vide the impugned order dated 25.09.2014. 2.3. Aggrieved against the confirmation of the demands in the impugned order, the appellant has filed this appeal. The issue regarding elig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail 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 period, it is submitted that the appellant outsourced the said activity of performing Operations & Maintenance to service providers who were responsible to ensure upkeep of cell site including the DG; Diesel is always required for the running the DG sets and 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 the cell site. It is also submitted that on such activity of procurement, transportation and filling, the service providers charged service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., 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 equipment used for setting up of telecom infrastructure along with BTS becomes accessories to the BTS. Thus, the appellant contends that CENVAT Credit on such towers and shelters are admissible to the Appellant under Rule 2(a)(A)(iii) of the CENVAT Credit Rules as an accessory to the BTS. 6.1. Reliance in this regard is placed on the following decisions: a. Bharat Sanchar Nigam Ltd. v. CCE, Cus. & ST, Bhubaneswar-I [2024 (7) TMI 1403 - CESTAT Kolkata] b. ATC Telecom Infrastructure Private Ltd. v. Commissioner, Service Tax, Delhi-II [2023 (2) TMI 895 - CESTAT Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, service tax credit availed on transportation services for travel of employees for official purposes like business meets, sales & advertisement campaigns, etc., are also meant for furtherance of business. Hence, we hold that the CENVAT Credit availed on such services is also eligible as 'input service'. 11.1. We observe that the above said issues are no more res integra as the Tribunal, Bangalore in the case Robert Bosch Engg. & Business Solutions Ltd. & Commissioner of Central Excise and Service Tax, Bangalore-LTU [2017 (51) S.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 workable condition, thus this equipment used for setting up of telecom infrastructure along with BTS becomes accessories to the BTS. Thus, we hold that CENVAT Credit on such towers and shelters are admissible to the Appellant under Rule 2(a)(A)(iii) of the CENVAT Credit Rules as an accessory to BTS. 12.2. We find that this view has been taken by this Tribunal in the case of Bharat Sanchar Nigam Ltd. v. Commissioner of C.Ex., Cus. & S.T., Bhubaneswar-I [2024 (7) TMI 1403 - CESTAT Kolkata]. The relevant part of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly 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 filed by the assessee appellants." The said order has been relied by this Tribunal in the case of Indus Towers Ltd. v. Commissioner of Central Excise & Service Tax, Delhi-V [2020 (6) TMI 493 - CESTAT, Chandigarh] (Final Order No. 61221/2019 dated 19.12.2019 in Service Tax Appeal No. 51211 of 2015)" 12.3. Therefore, we hold that the said goods qualify as capital goods eligible for credit to the Appellant, in terms of Rule 2 (a)(A)(i) of the CENVAT Credit Rules. 13. Regarding ..... 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