2019 (5) TMI 1698 - AT - Service Tax

Appellant granted Cenvat credit on telecom infrastructure, Tribunal cites legal principles.

M/s. Bharati Infratel Limited Versus Commissioner of Service Tax, Delhi-IV

The Tribunal ruled in favor of the appellant, allowing them to avail Cenvat credit on towers, shelters, and input services used for providing ... CENVAT Credit - input - tower - shelter - input services - telecommunication services/passive infrastructure - HELD THAT:- The issue decided in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX-GURGAON VERSUS BHARTI INFRATEL LIMITED [2019 (2) TMI 1736 - CESTAT CHANDIGARH] where it was held that The assessee-appellant are entitled to avail cenvat credit on items, towers, shelter parts thereof being input used for providing output service. The credit availed by the appellant is allowed - appeal allowed - decided in favor of appellant. Issues Involved:- Entitlement to avail credit on tower and shelter under Rule 2(k) of Cenvat Credit Rules, 2004- Entitlement to avail credit on input service used for providing telecommunication services/passive infrastructure under Rule 2(l) of Cenvat Credit Rules, 2004Analysis:Issue 1: Entitlement to avail credit on tower and shelter under Rule 2(k) of Cenvat Credit Rules, 2004The main issue in this case was whether the appellant could claim credit on towers and shelters as per Rule 2(k) of the Cenvat Credit Rules, 2004. The Tribunal referred to a previous decision where it was established that towers and shelters, being part of the active infrastructure for telecommunication services, qualify as 'inputs' under the functional utility test. The Tribunal emphasized that the definition of 'inputs' in Rule 2(K) does not contain any condition related to the emergence of immovable property. Additionally, even if towers become immovable property at a later stage due to assembly or erection, the appellant is still entitled to credit. The Tribunal concluded that the appellant was indeed entitled to avail Cenvat credit on towers and shelters as they are used for providing output services.Issue 2: Entitlement to avail credit on input service used for providing telecommunication services/passive infrastructure under Rule 2(l) of Cenvat Credit Rules, 2004The second issue revolved around the appellant's entitlement to claim credit on input services used for providing telecommunication services or passive infrastructure under Rule 2(l) of the Cenvat Credit Rules, 2004. The Tribunal, after considering the submissions and relying on its previous decision in the appellant's case, allowed the credit availed by the appellant. The impugned order was set aside, and the appeals were allowed with consequential relief, if any. The Tribunal's decision was based on the interpretation that the input services used for providing telecommunication services and passive infrastructure were eligible for credit under Rule 2(l) of the Cenvat Credit Rules, 2004.In conclusion, the Tribunal ruled in favor of the appellant, allowing them to avail Cenvat credit on towers, shelters, and input services used for providing telecommunication services/passive infrastructure. The judgment provided a detailed analysis of the issues involved, citing relevant legal principles and precedents to support the decision.