TaxTMI 
TaxTMI 
2012 (4) TMI 362
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....tput service during the period from October 2004 to March 2008. The items on which CENVAT credit was sought to be denied in the first SCN were (i) tower & parts thereof, (ii) prefabricated building (PFB), (iii) printer and (iv) office chair. The rest of the SCNs sought to deny the benefit in respect of (i) antenna, (ii) tower and parts thereof and (iii) green shelter (same as PFB) on the basis of the view taken in the order passed by the Commissioner in adjudication of the first SCN, which is under challenge in the first appeal before us. The Commissioner passed a common order in adjudication of SCNs 2 to 4 dropping demand in respect of antenna and confirming demand in respect of other items. This order of the Commissioner is impugned in the second appeal before us. Sl. No. SCN date Period Amount demanded (Rs.) Amount confirmed (Rs.) Appeal No. 1. 25.4.2006 10/04 to 9/05 2,04,39,093 2,04,39,093 ST/49/07 2. 23.4.07 10/05 to 3/06 4,41,42,943 4,41,42,943 ST/145/09 3. 8.2.08 4/06 to 3/07 3,80,77,535 3,13,03,921 -do- 4. 23.10.08 4/07 to 3/08 7,18,43,420 5,47,62,064 -do- 2. The learned Commission....
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....s, the first one was in the focus of all arguments. The written submissions dated 16/6/2011 filed by the counsel for the appellant discussed the use of towers as follows: "2.1 Two types of antennas are used in providing cellular telephone services namely; Microwave antenna and GSM antenna. The towers are used for hoisting the Microwave antennas and GSM antennas at a particular predetermined and technically viable height for optimum coverage of the cellular network. 2.2 The communication between two microwave antennas at two different towers takes place through Line-of-Sight Propagation (LOS). Without the towers, the Microwave antennas cannot be installed high above the ground and thereby the antennas cannot receive or transmit signals. It is necessary to place microwave antenna at a height to establish a LOS link between two microwave antennas at two different towers. Towers help Microwave antennae in avoiding obstacles like trees, buildings etc. Towers help Microwave antenna in avoiding earth's curvature. 3.1 Towers are essential to increase the coverage area of the GSM antennas. Otherwise, number of GSM antenna along with Base Transceiver Station and other equipments req....
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....e dominant interfaces are interface between MSC and BSC, interface........... C.9 Thus, BTS is the first link in the CMTS. Therefore, BTS houses the radio transceivers and handles the radio link with the mobile telephone of the subscriber. BTS is the equipment required/used to transmit the GSM signal." 6. The appellant, in paragraphs E2 to E7 of Ground 'E' of the same appeal, explained the erection of tower for supporting antennae, installation of BTS equipment in PFB, laying of cables from antennae to BTS etc., as under: "E.2 The tower comprises of poles, for mounting of GSM and Microwave antenna (referred to as Antenna Tower in the said Show Cause Notice). The poles are given necessary angular supports to ensure their stable positioning. Antenna mounts comprising of angles are fixed on these poles and the antenna mounted on them. E.3 A pre-fabricated housing/shelter is also purchased for housing electrical equipments viz., Isolation Transformers, Batteries, and Stabilizers. Rectifier etc. and telecom equipments like BTS and Microwave/Radio Hops etc., and serves as a junction box. E.4 The Telecom installation vendor installs the BTS telecom equipments, lays cable (i....
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....operator. 10. Alternatively, the appellant has contended that the tower (and parts thereof) and the PFB would also qualify as 'inputs' used for providing output service. This contention is based on sub-clause (ii) of clause (k) of Rule 2 (definition of "input") of the CENVAT Credit Rules. In this connection, the appellant has relied on the following decisions: i) CCE vs. Modi Rubber Ltd. [2000 ( 119) ELT 197 (Tri-LB)] ii) CCE vs. Zenith Papers [2002 (146) ELT 518 (P&H)] 11 Office chairs have been claimed to be 'inputs' as, in the appellant's view, these were indirectly used, if not directly, for providing the output service. In this connection, the following decisions have been relied on: i) Commissioner vs. Hotel Leela Venture Ltd. [2003(158) ELT 777 (Tri-Mum)] ii) Oracle India P. Ltd. vs. CC [2006 (200) ELT 545 (Tri.-Bang.)] iii) CC vs. Aditi Technologies (P) Ltd. [2003 (151) ELT 343 (Tri)] iv) DSL Software vs. CC [2005 (181) ELT 250 (Tri-Bang)] v) Aztec Software Technology Services Ltd. vs. CC [2005 (189) ELT 301 (Tri-Bang)] 12. Printers which are classifiable under Chapter 84 of the CETA Schedule and are used for printing periodical bills for subsc....
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....eans that the same coverage area can be achieved with low-power and highly located antennas compared to high transmitter power levels and low antenna heights". iii) "WIRELESS COMMUNICATIONS AND NETWORKS" (Second Edition) by William Stallings ---- "A signal radiated from an antenna travels along one of three routes: ground wave, sky wave, or line-of-sight(LOS).... Above 30 MHz, neither ground wave nor sky wave propagation modes operate, and communication must be by line of sight..... For ground-based communication, the transmitting and receiving antennas must be within an effective line of sight of each other. The term effective is used because microwaves are bent or refracted by the atmosphere." The book contextually provided the following particulars too: Band Frequency Range Free-Space Wavelength Range Propagation Characteristics Typical Use UHF (ultra high frequency) 300 to 3000 MHz 100 to 10 cm LOS; cosmic noise UHF television; cellular telephone; radar; microwave links; personal communication systems iv) "CELL PHONE TOWERS AS VISUAL POLLUTION", an essay by John Copeland Nagle, University of Notre Dame, which appeared in Notre Dame Journal of....
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....urt thus: "Where any particular process or activity is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would, in our judgment, fall within the expression "in the manufacture of goods." vi) Indian Copper Corporation Ltd. vs. Commissioner of Commercial Taxes, Bihar & others (vide supra), wherein it was held by the apex court that cane baskets which were used for carrying ore and other materials used in the mining or in the manufacture of goods should be regarded as used in the process of manufacturing or mining. vii) Collector of Central Excise Vs. Jay Engineering Works Ltd. [1989 (39) ELT 169 (SC)] wherein it was held that a nameplate affixed on fan was an input and essential ingredient and hence entitled to set-off of duty under Notification No.201/79-CE dt. 04.06.1979 even if the fan could perform its essential function without such nameplate, because the fan did not become marketable unless the nameplate was affixed. viii) Godfrey Philips India Ltd. Vs. UOI [1990 (48) ELT 508 (Bom.)], wherein it was held that the word 'input' used....
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....Credit Rules, 2004 as amended under Notification No.16/2009-CE(NT) dt. 07/07/2009. The appellant submitted that nothing contained in the amended explanation to the definition of 'input' under Rule 2(k) was to be relied on to deny CENVAT credit on tower or parts thereof as inputs as (in their view) the explanation was applicable only to a manufacturer of final product claiming CENVAT credit on cement, angles etc. and was not applicable to a service provider. It was also contended that the above explanation was only applicable to angles and other items of steel falling under heading 72.16 and not to tower falling under heading 73.08 of the CETA Schedule. 19. In the written submissions, reliance was also placed on the Tribunal's decision in Ispat Industries Ltd. vs. CCE, Mumbai [2006 (195) ELT 164 (Tri.-Mumbai)] wherein credit of duty paid on angles, channels etc. which were used to fabricate structural base to make machines function without any vibration or movement was allowed under Rule 57Q of the Central Excise Rules, 1944. It was also pointed out that the Tribunal's decision was upheld by the Bombay High Court by order dt. 19/07/2007 in Central Excise Appeal No.187 of 2006 (CC....
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....tten submissions and urged that the appeals be allowed. 23. The learned JCDR made the following submissions: i) The towers were assembled at site and, upon assembly, they became immovable property. Any immovable property was not covered by the definition of 'capital goods' and therefore the erected towers could not be considered as capital goods falling under clause (i) of Rule 2(a)(A) of the CENVAT Credit Rules, 2004. In this connection, the Tribunal's Larger Bench decision in Vandana Global case was relied on. ii) The towers would also not fall under clause (iii) of Rule 2(a)(A) of the CENVAT Credit Rules, 2004 as this clause pertains to only parts, components and accessories of capital goods covered by clause (i). As towers being immovable and non-excisable are not covered under clause (i), their components and parts will not be covered under clause (iii). iii) As held by the Bombay High Court in the case of CCE, Mumbai vs. Hutchison Max Telecom Pvt. Ltd. [2008 (224) 191 (Bom.)], BTS (Base Transceiver Station) is not excisable as it is immovable and cannot be classified under heading 85.25. If that be so, the towers which are claimed to be components of BTS cannot be....
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.... on such components. vii) The components/parts of towers do not become towers by mere reason of their classification under SH 7308 20 11 or SH 7308 20 19. Clause (iii) of Rule 2(a)(A) of the CENVAT Credit Rules refers to components, parts and accessories, not on the basis of any classification but on the basis of their actual nature and use. The components of towers remain as components only and are per se not towers. Their classification under heading 7308 does not take away this character. (Majestic Auto Ltd. vs. CCE, Meerut [2001 (130) ELT 551 (Tri.-Del.)] relied on) They become towers only after they are assembled at site. Hence the contention of the appellant that what was received from the supplier's factory was tower is untenable. viii) The towers provide support to capital goods viz. antennas. This support can be provided by a high-rise building, flyover or even a concrete tower made of bricks, iron & steel and cement. It is nobody's case that the bricks, iron & steel and cement required for constructing such structure to support antenna would be eligible for CENVAT credit, whether as capital goods or as inputs. As a matter of fact, the appellant has conceded that the....
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....ve been directly used for providing output service. Tower parts in this case were not directly used for providing telecom service. xiv) PFBs are classifiable under heading 9406 in Chapter 94 of the CETA Schedule and this chapter is not specified in clause (i) of Rule 2(a)(A) which defines 'capital goods'. Therefore components/parts of such PFBs would also not be considered as capital goods under clause (iii) of the said rule. PFB and its parts cannot be considered as inputs either, as the connection between these items and the output service is too remote. xv) Chairs and printers being office equipments/appliances have been excluded from the ambit of the definition of 'capital goods'. Chairs, classifiable under Chapter 94 which is not specified in the definition of capital goods, cannot, in any case, be treated as capital goods. Chairs and printers cannot also be considered as inputs as they cannot be said to have been used for providing the output service. 24. The learned JCDR also referred to the case law cited by the learned Counsel and sought to distinguish the cited cases: i) In the case of Rajasthan Spinning and Weaving Mills (supra), the chimney was held to be an....
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....der like the appellant, the Tribunal allowed MODVAT credit to the assessee on a set of facts covered by Rule 57D(2). Similar provision does not exist in the CENVAT Credit Rules, 2004. Therefore, the decision in the case of Vam Organic Chemicals cannot be applied to the present case. Per contra, it was held by the Tribunal in the case of SCI India Ltd. vs. CCE, Patna [2008 (221) ELT 565 (Tri. Kol.)] that credit would not be available on that quantity of molasses which was used in the manufacture of non-excisable product, ethyl alcohol. vi) CBEC's telex Circular dt. 05/08/1997 which clarified that "tower constitutes an essential component of WOEG (Wind-Operated Electricity Generating set) and, in the absence of tower, the parts imported for the manufacture of WOEG cannot be said to be "WOEG presented in unassembled condition" cannot be of any aid to the appellant as there is no discussion of facts or law in the said circular. Moreover, there cannot be a windmill without a tower. 25. The learned JCDR also claimed support from certain decisions of the Tribunal, as under:- i) In the case of Mundra Port & Special Economic Zone Ltd. vs. CCE. Rajkot [2009 (13) STR 178 (Tri.-Ahmd.)....
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.... liable to be rejected. (The learned JCDR added that, though a Civil Appeal filed by Swetha Engineering Ltd. was admitted by the Supreme Court, their prayer for stay of operation of the Tribunal's order was not granted viz. Swetha Engineering Ltd. vs. Commissioner [2009 (236) ELT A56 (SC)]. 26. In his rejoinder, the learned Counsel for the appellant argued as under: i) The same item could be an accessory to more than one kind of instrument and therefore it is not difficult to consider a tower as accessory to both GSM antenna and MW antenna at the same time. Annapurna Carbon Industries Co. vs. State of Andhra Pradesh [(1976) 2 SCC 273] relied on. ii) The tower has the function of providing the requisite height for the efficient and optimum function of the antenna without which the telecommunication service cannot be provided. It should be held to be an accessory of the antenna by following CST, Maharashtra State, Bombay vs. L.D. Bhave & Sons [(1981) 47 SCC 318], Mehra Brothers vs. Joint Commercial Officer, Madras [(1991) 1 SCC 514] and CCE, Jaipur vs. Rajasthan Spinning and Weaving Mills Ltd. (vide supra). Alternatively, it can be held to be a part of the antenna by followi....
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.... The immovability of BTS site as a whole is irrelevant to the present issue. The Department has allowed credit in respect of antenna, DG sets etc. There is no reason why this benefit cannot be given to towers which were purchased on payment of excise duty. ix) The decision in the case of Mundra Port & Special Economic Zone Ltd. (supra) is not applicable to the present case wherein the connection between tower and the output service is direct inasmuch as, for providing telephone service on a commercial scale, it is necessary to instal antennas at a particular technically viable height. x) In the cases of Banco Products (India) Ltd. vs. CCE, Vadodara-I [2009 (235) ELT 636 (Tri. LB)] and CCE, Chandigarh vs. Zenith Papers [2002 (146) ELT 518 (P&H)], MODVAT credit was held to be admissible on the same item as capital goods or as input. xi) The submission of the learned JCDR that a tower in unassembled condition purchased by the appellant was an input for the erection contractor and not for the appellant has to be rejected in view of the decision in Rajarambapu Patil SSK Ltd. vs. CCE, Pune-II [2007 (208) ELT 372 (Tri. Mumbai). xii) Explanation 2 to the definition of input und....
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....n to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service. Explanation 1.- The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2.- Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; Explanation 2 was amended by Notification No.16/2009-CE(NT) dt. 07/07/2009. The amended text, which has been referred to by both sides, reads as follows: Explanation 2.--- Input include goods used in the manufacture of capital goods which are further u....
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....icated building object. The contention of the assessee was that the various items installed at the site were individual machines which became immovable property upon installation. Rejecting this contention, the Commissioner (adjudicating authority) held that, with the assembly of various equipments installed at site, a commodity with distinct name, identity, character and use emerged and the same was distinct from the inputs and was classifiable under heading 8525. The Commissioner's order was set aside by the Tribunal holding that the so-called 'BTS/BSC Site' erected, installed and commissioned by the contractors of the company was not marketable goods and hence not excisable. It was held that no manufacture was involved in the said activity of erecting, installing and commissioning of the BTS/BSC Site. The Tribunal's decision was upheld by the Hon'ble High Court. Proceeding on the footing that what was assembled and installed was a new product distinct from the components from which it was assembled, the Hon'ble High Court examined its marketability. It was found that the product could not be shifted from one place to another without damage to some components. Apart from this,....
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...., in the case of Hutchison Max Telecom Pvt. Ltd., the assessee considered individual machines of the system as immovable and non-excisable whereas, in the present case, the assessee wants the system to be held to be excisable and classifiable under heading 8525.) Therefore, we will follow the decision taken by the jurisdictional High Court on excisability of the 'Cell Site'. The Hon'ble High Court rejected the Department's plea for holding it to be marketable and excisable and to be classifiable under heading 8525. In view of that decision, we have to reject the appellant's contention that the 'Cell Site' is classifiable under heading 8525 and hence 'capital goods' falling under sub-clause A(i) of clause (a) of Rule 2 of the CENVAT Credit Rules, 2004 and, therefore, the tower and parts thereof should be held to be components falling under sub-clause A(iii) of Clause (a) of Rule 2. No doubt, components, spares and accessories falling under Rule 2(a)(A)(iii) can be held to be 'capital goods' for the purpose of CENVAT credit if these are shown to be components, spares and accessories of goods falling under any of the Chapters or Headings of the CETA Schedule specified in sub-clause (i....
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....ter into the composition of the antennas. It is not a constituent part of the antennas. 31. The above view taken by us stands vindicated in a judgment of the Hon'ble Supreme Court which was passed after the hearing was concluded in the present case vide Saraswati Sugar Mills vs. CCE, Delhi-III [2011 (270) ELT 465 (SC)]. In the said case, the question considered by their lordships was whether iron & steel structures fabricated from sheets, angles, nuts & bolts etc. and used captively in the factory as structural support to machinery (vacuum pans, crystallisers etc.) used for the manufacture of sugar and molasses could be classified as capital goods under Rule 57Q of the Central Excise Rules, 1944. The definition of capital goods under this rule as it stood at the material time reads as under:- (1) All goods falling under heading Nos. 82.02 to 82.11; (2) All goods falling under Chapter 84 (other than internal combustion engines falling under heading No. 84.07 and 84.08 and of a kind used in motor vehicles, compressors falling under heading No. 84.14 and of a kind used in refrigerating and air-conditioning appliances and machinery, heading or sub-heading Nos. 84.15. 85.18. 84....
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.... reasoning of the apex court, which squarely supports the view taken by us in the present case, can be had from para 19 of its judgment, which is as under:- 19. It appears to us, in the light of the meaning of the expression 'component parts' that the iron and steel structures are not essential requirements in the sugar manufacturing unit. Anything required to make the goods a finished item can be described as component parts. Iron and Steel structures would not go into the composition of vacuum pans. crystallizers etc. If an article is an element in the composition of another article made out of it, such an article may be described as a component of another article. Thus, structures in question do not satisfy description of 'components'. Therefore, in our opinion, the Tribunal was right in the view it took. [emphasis supplied] 32. Therefore we reject the learned counsel's argument that the tower should be considered as a 'component' of antenna to be classified as capital goods under Rule 2(a)(A)(iii). 33. The learned counsel has also argued that, if the tower cannot be accepted as a component of antenna, it can be treated as an accessory of antenna. A similar argument ....
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....ry, subordinate, additional or extra thing which is added to make something more useful, effective, convenient etc. is understood as an accessory as per the cited dictionaries. It will be absurd to hold a gigantic immovable structure to be an 'accessory' of a small equipment placed on its top. All the three terms --- 'components', 'spares' and 'accessories' -- used in sub-clause (A)(iii) of clause (a) of Rule 2 should be understood as standing for movables only. It was held by the larger Bench in Vandana Global case that "capital goods" defined under the CENVAT Credit Rules must be excisable goods. Therefore, the argument of the learned counsel with reference to the term 'accessory' cannot be accepted. 34. The learned counsel for the appellant submitted that the Hon'ble Supreme Court in the case of Rajasthan Spinning & Weaving Mills (supra) considered chimney to be an accessory of DG sets and, on that basis, held it to be capital goods. On a perusal of the apex court's judgment, we find that the court found no dispute with regard to the nature of chimney. The relevant observation in the judgment reads thus: "...... The parties are ad idem that diesel generating set falls under C....
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....r item should be capable of being used with a machine and should advance the effectiveness of working of that machine. The plastic crates in question are used for transportation of the raw material to the processing machine and all the finished goods from the machine to the storage area.........when viewed and judged in the light of interpretation of the term "accessory" by various Courts, the plastic crates are required to be held as accessory only. If that be so, the same would fall under Sr.No. 3(i) of Rule 2(b) of Cenvat Credit Rules, 2002. We find that no immovable structure like tower was held to be accessory in any of the judgments considered by the larger Bench in the case of Banco Products (India) Ltd. The larger Bench itself was dealing with plastic crates and not any immovable item. In the case of Annapurna Carbon Industries Co. (supra) relied on by the learned counsel, the dictionary meaning of the word 'accessory' was considered and it was held that the same item could be an accessory of more than one kind of instrument. This decision was cited by the learned counsel in support of his argument that the same tower could function as accessory of different kinds of ant....
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....or use in the manufacturing or processing of goods for sale". Similarly cane baskets which were used for carrying ore and other materials used in the mining or in the manufacture of goods were also held to be within the ambit of the said expression. In the case of J.K. Cotton Spinning & Weaving Mills, the Supreme Court held thus: "In our judgment, if a process or activity is so integrally related to the ultimate manufacture of goods so that, without that process or activity, manufacture may, even if theoretically possible, be commercially inexpedient, goods intended for use in the process or activity as specified in Rule 13 will qualify for special treatment." Both the judgments were relied on by a larger Bench of this Tribunal in the case of Jawahar. Mills Ltd. wherein the issue considered by the Bench was whether welding electrodes, wires and cables etc. were capital goods within the meaning of the explanation to Rule 57Q(1) for the period from March to October, 1994. During this period, the relevant part of the explanation to Rule 57Q(1) read as follows: (1) 'Capital goods' means - (a) machines, machinery, plant, equipment, apparatus, tools or appliances used for producing....
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.... their water treatment plant could be held to have been used in the manufacture of urea (fertiliser) so that they could claim the benefit of exemption Notification No.187/61-CE in respect of raw naphtha which was used in the manufacture of ammonia. The court held that the water treatment plant was part and parcel of the fertiliser manufacturing plant and therefore the ammonia used in the water treatment plant could be held to have been used in the manufacture of the fertiliser. The learned counsel has argued that the tower is liable to be considered as a "part and parcel" of the BTS Cell Site which was used for providing mobile telephone service. This contention is not tenable as we have already dismissed the plea for holding the tower as a component, part or accessory of any capital goods classifiable under Chapter 85 of the CETA Schedule. 37. It has been argued by the learned counsel that the expression "used for providing output service" occurring in the definition of "capital goods" under Rule 2(a)(A) of the CENVAT Credit Rules, 2004 must be understood in a wider sense than the expression "used in the manufacture of goods". According to him, the word "for" widens the scope o....
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....viding any output service are within the ambit of the definition of "input". If any item has to be brought within the ambit of this definition, it has to be, firstly, "goods" and, secondly, "used for providing any output service". The first requirement in this case is not met by the towers which are admittedly immovable structures and ipso facto non-marketable and non-excisable. In our view, the following points made by CBEC in Circular No.58/1/2002-CX dt. 15/1/2002 are relevant to this context: (iii) Where change of identity takes place in the course of construction or erection of a structure which is an immovable property, then there would be no manufacture of "goods" involved and no levy of excise duty. (v) If items assembled or erected at site and attached by foundation to earth cannot be dismantled without substantial damage to its components and thus cannot be reassembled, then the items would not be considered as moveable and will, therefore, not be excisable goods. (vii) When the final product is considered as immovable and hence not excisable goods, the same product in CKD or unassembled form will also not be dutiable as a whole by applying Rule 2(a) of the Rules ....
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.... only to manufacturer in the conspicuous absence of any reference to service provider. Therefore we hold that Explanation 2 is applicable only to manufacturers of excisable goods and not to providers of taxable services, both prior to 07/07/2009 and after that date. In other words, Explanation 2 has no impact on the issue at hand. In the result, the iron & steel materials used for fabricating and erecting the towers cannot be held to be 'inputs' on the basis of anything contained in Explanation 2. 40. The learned counsel for the appellant has relied on a line of decisions in support of his plea for holding towers to be 'inputs' used for providing mobile telephone service. In the case of Godfrey Philips India Ltd., the word 'input' used in Notification No.201/79-CE dt. 04/06/1979 was examined by the Bombay High Court and was held to have a wider meaning than the word 'ingredient'. In the case of Hindustan Sanitaryware and Industries, the question considered by the Supreme Court was whether moulds of plaster of Paris which were used for manufacture of sanitaryware could be treated as 'inputs' within the meaning of this term used in exemption Notification No.217/86-CE dt. 02/04/198....
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....providing telecom service, in the absence of evidence. 43. The appellant has also claimed CENVAT credit on printers which are office equipments. The definition of capital goods under Rule 2(a)(A) indicates that the capital goods used by a manufacturer of final product will not include any equipment or appliance used in an office. The learned counsel for the appellant has argued that this exclusion does not apply to a provider of output service and, therefore, the printers used by the appellant are liable to be treated as 'capital goods'. The learned JCDR has argued that, though the item is covered by Chapter 84 specified in sub-clause (i) of Rule 2(a)(A), it will not fall within the ambit of the definition of 'capital goods' as there is no direct nexus between this item and the output service provided by the appellant. The appellant has not established sufficient nexus between printers and their output service. There is substance in this submission. The appellant has not proved that the printers were used for the purpose of providing mobile telephone service. 44. In the absence of evidence that the chairs or printers were used for providing mobile telephone service, both thes....
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....t was without considering the plea of limitation that the learned Commissioner disallowed CENVAT credit of over Rs.13 crores to the assessee. However, the Commissioner's order impugned in appeal No.ST/49/2007 considered the plea somewhat. This order of the Commissioner took the view that the assessee suppressed the material facts by not furnishing the relevant particulars in ST3 returns and therefore the extended period of limitation was invocable. After considering the submissions of both sides, we note that a major part of the demand of over Rs.2 crores confirmed against the appellant in the Commissioner's order impugned in appeal No.ST/49/2007 is within the normal period of limitation. The rest of the demand is for the extended period and the same has been confirmed against the assessee on the basis of the above finding. The memorandum of appeal says that the appellant had no intention to evade payment of duty and therefore the extended period of limitation is not invocable. It is submitted that, for the period from October, 2004 to March, 2005, there was no legal requirement of filing CENVAT Returns, and therefore, for the said period, the relevant date would be the date of ava....