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TMI Blog2025 (1) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... edit Rules, 2004 or not - invocation of extended period of limitation. HELD THAT:- Their Lordships of the Supreme Court, considering the said issue involved in M/S BHARTI AIRTEL LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE [ 2024 (11) TMI 1042 - SUPREME COURT] have held that ' Having held that the tower and pre-fabricated buildings (PFBs) are goods and not immovable property and since these goods are used for providing mobile telecommunication services, the inescapable conclusion is that they would also qualify as inputs under Rule 2(k) for the purpose of credit benefits under the CENVAT Rules.' Conclusion - Thus, tower materials and PFBs are not immovable property and qualify as inputs under the Cenvat Credit Rules, 2004. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital goods or inputs as defined under the Cenvat Credit Rules, 2004? (iii) Whether in the facts and circumstances of the case, the Appellate Tribunal was correct and justified in holding that tower would not qualify as part or component or accessory of the capital goods i.e. antenna? (iv) Whether the Appellant is entitled to claim Cenvat Credit on the towers, shelter as capital goods or inputs in terms of Rule 2(a) or 2(k) of the Cenvat Credit Rules, 2004? 3. Similarly, in the appeal preferred by the Respondent-Revenue, i.e., Tax Case No. 132/2018, the substantial questions of law which were reformulated, are as under:- (i) Whether the CESTAT is correct in holding that the extended period cannot be invoked as stipulated in proviso to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was availed by the Appellant during the period 2005-06 to 2007-08 was not admissible to them and accordingly the Respondent reversed the CENVAT credit of Rs. 89,81,109/-. Further, the Appellant had availed CENVAT credit of Rs. 1,07,27,241/- during the period 2006-07 and 2007-08 on the basis of transfer advices . Appellant-BSNL had also availed CENVAT Credit of Rs. 62,01,384/- on the capital goods which were not received/used by them but used by their other offices (Bilaspur, Durg, Bhilai etc.) which was not admissible to them. The Appellant had himself had adjusted an amount of service tax of Rs. 29,60,286/- paid earlier in their ST-3 returns for the period October, 2006 to March, 2007 but could not produce any evidence that the excess ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential demand of Rs. 1,55,792/- as not sustainable. (III) Being aggrieved with the demand of CENVAT Credit dropped as detailed above, the Respondent preferred Appeal No. ST/190/2012 CU (DB) (out of which Tax Case No. 33/2018 and Tax Case No. 132/2018 have arisen) and the Appellant-BSNL also preferred an Appeal No. ST/249/2012 (out of which Tax Case No. 38/2018 has arisen) before the Customs, Excise Service Tax Appellate Tribunal, New Delhi (CESTAT) which has decided the aforesaid two appeals along with two other identical appeals of other parties vide the impugned Order dated 19.1.2018 held that the Appellant-BSNL is not eligible for credit on such items and accordingly allowed the appeal filed by the revenue while dismissing the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 1.The core issue involved in the set of appeals was whether the mobile service providers (MSPs) who pay excise duties on various items for setting up their business more particularly for erection of mobile towers and peripherals like pre-fabricated buildings (PFBs) etc. can take the benefit of CENVAT Credit under the CENVAT Credit Rules, 2004 for the purpose of payment of service tax on the output services rendered by them. With respect to the same, conflicting views have been given by two High Courts, namely the High Court of Bombay and High Court of Delhi. The Bombay High Court has ruled against the MSPs, favouring the Revenue, holding that MSPs are not entitled to CENVAT credit on mobile towers and prefabricated buildings. Whereas, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he effective functioning of antenna by which the radio signals are received and transmitted and accordingly, used for providing the mobile telephonic services to the subscribers. Thus, towers and PFBs, though are not electrical equipment for transmission of signals, yet these are used for transmission of signal by the antennas. Therefore, there can be no denying of the fact that there is a close proximity and nexus between their functioning and the ultimate transmission of radio signals which is the output service rendered by the MSPs. Hence, the view of the CESTAT which has not been disturbed by the Bombay High Court does not commend our acceptance. 11.12.6. Having held that the tower and pre-fabricated buildings (PFBs) are goods and not i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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