2018 (3) TMI 708 - AT - Service Tax

Appeals Granted: Credit Upheld, Penalties Denied

M/s. Bharti Airtel Ltd. Versus Commissioner of GST, Central Excise, Chennai And Commissioner of GST, Central Excise, Chennai Versus M/s. Vodafone Essar Cellular Ltd. And Vice-Versa

The Tribunal partially allowed the appeals, upholding the denial of credit on inputs/capital goods and towers/shelters for the normal period without ... CENVAT credit - inputs/capital goods - input services - duty paid on towers and shelters - exemption under N/N. 4/2004-ST dated 31.3.2004 on Telecom Services provided to SEZ units. Whether the credit availed on inputs/capital goods as well as towers and shelters is eligible or not? - time limitation - Held that: - credit is not eligible - as regards limitation, the issue whether credit is admissible on inputs / capital gods as well as towers / shelters was contentious for a long time and had travelled upto the Larger Bench of the Tribunal and thereafter to higher fora. Also, there is nothing to establish that appellant had availed credit suppressing facts with intent to evade duty - extended period cannot be invoked - penalties also set aside - the demand for the normal period will sustain, however, the penalties for the normal period are set aside. Disallowance of credit on input services - Held that: - the issue stands covered by the decision in the case of Vodafone Essar South Ltd. (supra). The Tribunal in the said decision analysed the eligibility of credit on the very same services. The various services were used for providing output services. Further, the period is prior to 1.4.2011 when the definition of input services had a wide ambit as it included the words activities relating to business - credit not allowed. Denial of exemption under Notification No.4/2004 dated 31.3.2004 - Held that: - Merely because the facility of the mobile phone is used outside the SEZ unit also, the exemption in terms of Notification No. 4/2004 cannot be denied - benefit of notification allowed. Appeal allowed in part. Issues Involved:1. Eligibility of credit on inputs and capital goods, including towers and shelters.2. Eligibility of credit on various input services.3. Denial of exemption under Notification No. 4/2004-ST dated 31.3.2004 for telecom services provided to SEZ units.4. Invocation of the extended period of limitation for demand recovery.Detailed Analysis:1. Eligibility of Credit on Inputs and Capital Goods, Including Towers and Shelters:The appellants, engaged in providing mobile phone services, availed credit on inputs and capital goods, including duty paid on towers and shelters. The Tribunal referred to the Larger Bench decision and the Bombay High Court ruling in Bharti Airtel, which held that credit on such items is not admissible. The appellants argued that they availed credit on a bonafide belief and without intent to evade duty. The Tribunal noted that the issue was contentious and had been litigated extensively, thus setting aside the demand for the extended period and penalties while upholding the demand for the normal period.2. Eligibility of Credit on Various Input Services:The appellants claimed credit on input services such as construction, rent-a-cab, and catering, which were used for providing output services. The Tribunal, referencing the Vodafone Essar South Ltd. case, held that these services were eligible for credit as they were used for providing output services and fell within the definition of input services prior to 1.4.2011. Consequently, the disallowance of credit on these services was deemed unjustified.3. Denial of Exemption Under Notification No. 4/2004-ST for Telecom Services Provided to SEZ Units:The department denied exemption under Notification No. 4/2004-ST, arguing that services were used outside the SEZ. The Tribunal found that the services were provided to SEZ units and that usage outside the SEZ did not disqualify them from exemption. The Tribunal also considered the SEZ Act, which grants various tax exemptions to SEZs, and thus set aside the demand on this count.4. Invocation of the Extended Period of Limitation for Demand Recovery:The Tribunal examined whether the extended period of limitation was justified. It concluded that the invocation of the extended period was unwarranted as the appellants had availed credit on a bonafide belief and there was no suppression of facts with intent to evade duty. Therefore, the demand for the extended period was set aside, and only the demand for the normal period was upheld without penalties.Separate Judgments:For Appeal Nos. ST/244 & 301/2010, the Tribunal partly allowed the appeals, upholding the denial of credit on inputs/capital goods and towers/shelters for the normal period without penalties, while allowing credit on input services and setting aside the denial of exemption under Notification No. 4/2004-ST.For Appeal Nos. ST/610/2010 and ST/634/2010, the Tribunal adopted the same reasoning, disallowing credit on inputs/capital goods and towers/shelters for the normal period without penalties, and allowing credit on input services. The department's appeal on the wrong invocation of legal provisions by the Commissioner was disposed of as it did not sustain on merits.Conclusion:The Tribunal's order resulted in a partial allowance of the appeals, with specific directions regarding the eligibility of credit on inputs, capital goods, and input services, and the denial of exemption under Notification No. 4/2004-ST. The invocation of the extended period of limitation was set aside, leading to a nuanced resolution of the issues at hand.