AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (1) TMI 1283
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..... angles, channels, beams which were used in towers and tower materials, pre-fabricated buildings/shelters, etc. in providing the said output service. Periodical demand notices were issued from time to time for recovery of the Cenvat credit alleging that these towers, towers parts, pre-fabricated buildings/shelters do not fall under the scope of definition of inputs as defined in Rule 2(k) of CENVAT Credit Rules, 2004; also tower and other materials being immovable in nature cannot be considered as goods and consequently, inputs. On Adjudication, the demands were confirmed and penalties imposed. 3. Similarly, various demand notices were also issued and confirmed against M/s Bharat Sanchar Nigam Limited for the period of April 2004 to December 2010 on the very same grounds. Hence, the present appeals. 4. The Ld. Advocate for the appellants submits that the basis on which the impugned orders were passed relying on the principle of law laid down by the Tribunal in the case of Mundra Ports and Special Economic Zone Limited Vs. Commissioner of Central Excise and Customs, 2009 (13) STR 178 (Tri-Ahmd), which is no more good law, as the Appeal carried against the said judgment before the....
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....9;s case. 6. The learned Advocate further submitted that any input which is used for providing output service, namely Telecom service, would definitely come within the scope of the definition of input prescribed under Rule 2(k) of CCR,2004. It is his contention that a somewhat similar question was posed in the context of Andhra Pradesh State sales tax before Hon'ble Andhra Pradesh High Court in the case of Indus Towers Ltd. Vs. Commercial Tax Officer, Begumpet Circle, Hyderabad and Ors. 2012 (52) VST 447 (AP). The issue for consideration before Hon'ble Andhra Pradesh High Court was whether the Assessee was eligible to procure the inputs like tower, tower parts for providing Telecom service at concessional rate of sales tax under Form-C, as the Assessee was providing passive telecom infrastructure services. It is his argument that answering the question in favour of the assesse,, it has been held by the Hon'ble Andhra Pradesh High Court that towers, tower parts and pre-fabricated building/shelters are used for providing output service of telecommunication services. In the present case also, the Appellant fulfilled the test of used for in providing the taxable output ser....
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....e . Besides, in the Mundra Port's case, the Hon'ble Gujarat High Court had examined the eligibility of the credit on cement & steel in the light of the Explanation-2 inserted into Rule 2(k) of CENVAT Credit Rules,2004 with effect from 07.07.2009, which excludes cement and steel form the scope of inputs. Further, it is his contention that the Hon'ble High Court had examined the retrospective operation of the said amendment and also rejected the department's stand on disallowing the credit on cement and steel used in construction of the port, which itself being an exempted service, therefore, credit could not be admissible. Thus, the judgment of Hon'ble Gujarat High Court is limited to the question of law framed in the said case. Further, he has argued that on the other hand the question of law framed for consideration by the Hon'ble Bombay High Court in Bharti Airtel's case is directly on the point in issue, i.e. whether the appellant was entitled to credit of duty paid on tower/tower parts, etc., hence, it is applicable to the present set of Appeals. 9. Responding to the argument that in case of conflicting views/judgments of two different High Courts, the Tribunal is ....
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....ent issue; it being the Jurisdictional High Court. Resisting the said move of the Appellant, Revenue submits that the judgment of Hon'ble Gujarat High Court in Mundra Port's case, has been in a different context/circumstances involving different inputs and output service, therefore, not applicable to the present facts. It is their contention that there is no conflict between the ratio laid down by Hon'ble Mumbai High Court and that of Hon'ble Gujarat High Court as the facts and circumstances in both cases are totally different. Therefore, the judgment in Mundra Port's case should not be blindly adopted/followed and made applicable to the present facts. The learned Authorized Representative for the Revenue placed reliance on the judgment of Hon'ble Supreme Court in in Alnoori Tobacco Products case in advancing their argument. It is relevant to visit the ratio laid down in Alnoori Tobacco Products case. In the said case, the Hon'ble Supreme Court , inter alia, observed as below: "11. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Obs....
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.... side of the line a case falls, the broad resemblance to another case is not at all decisive." *** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it." 12. Thus, in our view, it is quite essential to examine facts and the question of law framed by the respective High Courts in order to ascertain whether the judgments stand on the same platform or other wise. We find that the questions raised before Hon'ble Mumbai High Court in Bharati Airtel Ltd's case for determination are framed as follows:- "1. Whether in the facts and circumstances of the case, the Appellate Tribunal was correct and justified in holding that the appellant was not entitled to credit of duty paid on tower parts, green shelter, printers and office chairs 2. Whether in the facts and circumstances of the case, the Appellate Tribunal was correct and justified in holding that the appellant was not entitled to credit of duty paid on tower parts, green shelter on the gro....
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....ence, do not qualify as capital goods on inputs as defined under the Cenvat Credit Rules, 2004 (g) Whether in the facts and circumstances of the case, the Hon'ble Appellate Tribunal erred in not appreciating that the towers (in CKD and SKD form), parts of tower/shelter would qualify as components, parts and accessories of goods falling under Chapter 85 (h) Whether in the facts and circumstances of the case the Hon'ble Appellate Tribunal erred in not appreciating that for the purposes of availing credit under the Cenvat Credit Rules, towers (in CKD and SKD form) and parts of the towers were goods when received and credit was taken and it is immaterial whether the same were erected later (i) Whether the Hon'ble Appellate Tribunal erred in not considering and appreciating the technical literature and evidence placed before it showing that both the towers and the shelters were capable of being shifted or moved and rendering perverse findings (j) Whether in the facts and circumstances of the case, the Hon'ble Appellate Tribunal erred in not appreciating that towers were accessories to the capital goods (k) Whether the Tribunal erred in law to appreciate that the identity ....
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....quipment and various customer premises equipment. At the heart of the whole infrastructure is the Base Transreceiver Station (BTS) which facilitates wireless communication between the customers equipment (e.g. mobile phones) and the main network. The general architecture of the BTS system involves various equipments such as antennae, towers, prefabricated buildings, etc., and all these, in combination, are used by the appellant in delivering telecom services to its customers. 4. According to the appellant, in its ordinary course of business, it had availed of Cenvat credit for duty paid on inputs and capital goods as well as availed of credit of service tax paid on input services used for providing output service, and utilised the same for discharging their output service tax liability. The appellant had inter alia availed of Cenvat credit for duty paid on towers (in CKD/SKD form), parts of towers, shelter/pre-fabricated buildings purchased by them and used for providing output service." 14. On the other hand, the Hon'ble Gujarat High Court in Mundra Port's case (supra) formulated the question of law as follows:- "4. This Tax Appeal has been admitted on 22-1-2009 on th....