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of <h1>Appeal dismissed, upholding authority's decision on Cenvat credit compliance.</h1> <h3>Commissioner of Service Tax, Kolkata Versus M/s Bharat Sanchar Nigam Limited</h3> Commissioner of Service Tax, Kolkata Versus M/s Bharat Sanchar Nigam Limited - TMI Issues Involved:1. Eligibility of Cenvat credit on 'Towers and Parts & Accessories of Towers' under Chapter 73 of the Central Excise Tariff Act, 1985.2. Admissibility of credit transferred by ETR and ETP without registration as 'Input Service Distributor'.Summary:Issue 1: Eligibility of Cenvat credit on 'Towers and Parts & Accessories of Towers'The first issue concerns the eligibility of Cenvat credit amounting to Rs.90,54,251/- availed on 'Towers and Parts & Accessories of Towers' under Chapter 73 of the Central Excise Tariff Act, 1985. The department argued that these items do not qualify as 'capital goods' under Rule 2(A) of the Cenvat Credit Rules and that 'parts & accessories' used in the erection of towers do not satisfy the definition of 'input' as they are civil structures attached to earth and not 'excisable goods'.The adjudicating authority, however, found that since excise duty was paid on these goods, they are 'excisable goods'. The authority held that even if the towers and parts do not qualify as 'capital goods', they satisfy the definition of 'input' under Rule 2(k) of the said Rules. The installed towers are essential for providing telecommunication services, as they are used for receiving and transmitting signals. Hence, the authority concluded that the credit availed on these items is legitimate and dropped the demand.Issue 2: Admissibility of credit transferred by ETR and ETPThe second issue involves the transfer of credit amounting to Rs.6,68,37,663/- by ETR and ETP to the assessee through inter-office memos during 2005-06 and 2006-07. The department contended that the credit is inadmissible because ETR and ETP were not registered as 'Input Service Distributor' as required under Rule-7A of the Cenvat Credit Rules, and the documents used for availing the credit were not as prescribed under Rule 9. Additionally, the department argued that the inputs, capital goods, and input services were not used by the assessee but were installed in premises throughout Eastern India.The adjudicating authority found that ETR and ETP are branches of the assessee and that the credit was transferred through ATD/TED. The authority ruled that the denial of credit based on procedural lapses is not justified when the substantive conditions'duty payment on capital goods, inputs, and input services, and their use in providing output services'are satisfied. The authority relied on the decision of the Hon'ble CESTAT, South Zonal Bench, Chennai, which held that substantive benefits cannot be denied on procedural grounds. Consequently, the authority dropped the demand, and the department's appeal was rejected.Conclusion:The appeal filed by the department was dismissed, and the adjudicating authority's decision to drop the demands on both issues was upheld. The judgment emphasized that substantive compliance with the conditions for availing Cenvat credit is more critical than procedural lapses.
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