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TMI Blog2025 (1) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... s been dealt with in detail by the Hon'ble Supreme Court in the Bharti Airtel [2024 (11) TMI 1042 - SUPREME COURT], where they have gone through various judgements including that of Mumbai High Court in the case of Bharti Airtel as well as Delhi High Court in Vodafone [2018 (11) TMI 713 - DELHI HIGH COURT] and finally observed and held that mobile towers are not in the nature of immovable goods. Hon'ble Supreme Court also examined and decided on the issue, as to whether the credit would be admissible as an input or capital goods. Relevant observation by Hon'ble Supreme Court, it was, interalia, held that since tower is to be considered as capital goods and therefore all components, spares and accessories would also fall within the category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e towers, BTS would be entitled for availment of Cenvat Credit by them either as an input or as capital goods for providing output service. Therefore, on both these counts, taking of credit in respect of various items like MS angles, channels etc., used for erection and installation of mobile tower and prefabricated houses generator sets/other equipments etc., would be eligible for taking credit. 4. Learned AR reiterates the findings of Adjudicating Authority. 5. Heard both the sides and perused the records. 6. Issue to be decided is whether the inputs like angles, channels, beams etc,, used to erect tower and prefabricated buildings/shelters which are used for housing / storage of generator set / equipments and hoisting the antenna etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making it stable and wobble free. The fact that the tower, if required can be removed, dismantled in the CKD and SKD and sold in the market is not disputed. Application of the tests evolved and discussed above on these items clearly points to the movability as opposed to immovability of these items. We are, thus, of the view that mobile towers and PFBs are movable properties and hence, "goods"." 7. Further, Hon'ble Supreme Court also examined and decided on the issue, as to whether the credit would be admissible as an input or capital goods. Relevant observation by Hon'ble Supreme Court at para 11.11.11, cited below, it was, interalia, held that since tower is to be considered as capital goods and therefore all components, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling under Chapter 85 within sub-clause (i) of Rule 2(a)(A) of CENVAT Rules, these items consequently are covered by the definition of "capital goods" within the meaning of sub-clause (iii) read with sub-clause (i) of Rule 2(a)(A) of CENVAT Rules. Further, since these are used for providing output service, i.e., mobile telecommunication service, and since these are "capital goods" received in the premises of the provider of output service as contemplated under Rule 3(1)(i), the Assessees would be entitled to CENVAT credit on the excise duties paid on these goods." 11.12 The alternative plea taken by the Assessee is that these items, viz., mobile tower and the prefabricated buildings (PFBs) are "inputs' used f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is "used" for providing output service, would come within the purview of "input" under Rule 2(k) and excise duty paid on such items can be claimed as CENVAT credit which may in turn be used for payment of service tax for the output service provided by the MSPs. 8. Therefore, the Hon'ble Supreme Court held that the tower and prefabricated buildings are "goods" and not immovable property and also observed that these capital goods are for providing output service. It was also noted that they would also be classifiable as "inputs" under Rule 2(k) for the purpose of credit benefit under the CENVAT Rules. Thus, Hon'ble Supreme Court has, interalia, held that mobile tower and prefabricated buildings are capital goods and not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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