2014 (9) TMI 38 - HC - Service Tax

Tower and office items not eligible for CENVAT credit under relevant rules, being immovable or non-capital goods

M/s. Bharti Airtel Ltd. (Earlier known as Bharti Tele-Ventures Ltd.) Versus The Commissioner of Central Excise

The HC held that the tower, its parts, green shelter, printers, and office chairs do not qualify as capital goods or inputs under the CENVAT Credit Rules. ... Cenvat Credit - capital goods or not - being tower parts, green shelter, printers and office chairs - immovable property - tower would qualify as “part” or “component” or “accessory” of the capital goods i.e. antenna or not - definition of input - Held that:- It is clear that each of the component had independent functions and hence, they cannot be treated and classified as single unit. It is clear that all capital goods are not eligible for credit and only those relatable to the output services would be eligible for credit. The goods in question in any case cannot be held to be capital goods for the purpose of CENVAT credit as they are neither components, spares and accessories of goods falling under any of the chapters or headings of the Central Excise Tariff Schedule as specified in sub-clause (i) of the definition of capital goods. Hence a combined reading of sub-clause (a)(A) (i) and (iii) and sub-rule (2) indicates that only the category of goods in Rule 2(a)(A) falling under clause (i) and (iii) used for providing output services can only qualify as capital goods and none other. Admittedly the goods in question namely the tower and part thereof, the PFB and the printers do not fall within the definition of capital goods and hence the appellants cannot claim the credit of duty paid on these items. Whether inputs or not - Held that:- A plain reading of the definition of input indicates that in the present context, clause (i) of Rule 2 (k) may not be of relevance as same pertains to manufacturing activity and pertains to goods used in relation to manufacture of final product or any other purpose within the factory of production. Sub- clause (ii) has been referred to as relevant by the appellant as the same pertains to goods except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service. Tower and parts thereof are fastened and are fixed to the earth and after their erection become immovable and therefore cannot be goods. Whether tower is an accessory of antenna - held that:- It would be misconceived and absurd to accept that tower is a part of antenna. An accessory or a part of any goods would necessarily mean such accessory or part which would be utilized to make the goods a finished product or such articles which would go into the composition of another article. The towers are structures fastened to the earth on which the antennas are installed and hence cannot be considered to be an accessory or part of the antenna. The subject items are neither capital goods under Rule 2(a) nor inputs under Rule 2(k) of the Credit Rules and hence CENVAT credit of the duty paid thereon was not admissible to the appellants. - Decided against the assesssee. Issues Involved:1. Entitlement to Cenvat credit on duty paid for tower parts, green shelter, printers, and office chairs.2. Classification of tower parts and green shelters as 'immovable property' and their qualification as 'capital goods' or 'inputs' under the Cenvat Credit Rules, 2004.3. Qualification of towers as 'parts,' 'components,' or 'accessories' of capital goods like antennas.Detailed Analysis:1. Entitlement to Cenvat Credit on Duty Paid for Tower Parts, Green Shelter, Printers, and Office Chairs:The appellant, engaged in cellular telephone services, availed Cenvat credit on excise duty paid for tower parts, green shelters, printers, and office chairs, claiming these as necessary for providing output services. The Tribunal, however, held that these items did not qualify for Cenvat credit under the Cenvat Credit Rules, 2004. The Tribunal's decision was based on the interpretation that the goods in question did not meet the criteria for 'capital goods' or 'inputs' as defined under the rules.2. Classification of Tower Parts and Green Shelters as 'Immovable Property' and Their Qualification as 'Capital Goods' or 'Inputs' Under the Cenvat Credit Rules, 2004:The Tribunal and the Commissioner observed that tower parts and green shelters, once installed, become immovable property and thus do not qualify as 'capital goods' or 'inputs.' The rules stipulate that capital goods must fall under specific chapters of the Central Excise Tariff Act and be used for providing output services. The towers and shelters, classified under Chapter 7308, are not listed in the relevant chapters and thus do not meet the definition of capital goods. Furthermore, the Tribunal held that immovable properties are non-excisable and non-marketable, and therefore, do not qualify for Cenvat credit.3. Qualification of Towers as 'Parts,' 'Components,' or 'Accessories' of Capital Goods Like Antennas:The appellant argued that towers should be considered as accessories to antennas, which are capital goods under Chapter 85. The Tribunal rejected this argument, stating that towers are structural supports and do not directly contribute to the functionality of antennas as capital goods. The Tribunal emphasized that only goods directly related to output services qualify for credit. The decision was supported by various judgments, including the Supreme Court's ruling in 'Saraswati Sugar Mills vs. CCE Delhi,' which clarified that structural supports do not qualify as capital goods or inputs.Conclusion:The Tribunal's decision to deny Cenvat credit on tower parts, green shelters, printers, and office chairs was upheld. The items were classified as immovable property and did not meet the definitions of capital goods or inputs under the Cenvat Credit Rules, 2004. The towers were not considered accessories to antennas, and thus, the appellant's claims for credit were rejected. The appeals were dismissed, affirming that the goods in question were not eligible for Cenvat credit.