2017 (2) TMI 439

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.... along with tax demands thereof as tabulated by appellant are as follows: Sl. No. Appeal No. Appellants Vs. Respondent Period Notice Date Tax Amount Rs. 1. ST/429/2012 * M/s BSNL, Karimnagar Vs. Commissioner-Ill 2006-07 30.11.2010 2,82,455/- 2. ST/26070/2013 M/s BSNL, CellOne vs. Commissioner-Il April 2010 - March 20111 03.10.2011 2,53,91,431/-       April 2011 - March 2012 12.10.2012 2,32,97,186/- [Total=Rs. 4,86,88,617/-] 3. ST/25316/2013 M/s BSNL, CellOne Vs. Commissioner-Il March 2010 20.04.2011 85,92,33....

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....services. Commissioner has denied the credit pertaining to towers on the ground that the towers are not directly used for providing output service but are only used as structural support and therefore do not qualify as capital goods. Further, the credit has been denied also on the ground that the towers are immovable and hence not goods. Thus, credit is denied on the pre-fabricated buildings and towers on the premise that they are not capital goods within the meaning of Rule 2 (a) of the CENVAT Credit Rules, 2004. Ld. Advocate further points out that there was no intent to evade tax, no suppression of, any information, dispute arose only on differing interpretation which eventually had to be referred to a Larger Bench. Central Excise Audit ....

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....ances, we have no difficulty in following the aforesaid decisions and holding that the appellant-assessee will not be eligible to avail the cenvat credit on angles, channels and beams etc. used to erect the impugned towers. 7. However, on the matter of penalty we find that the issue being interpretational in nature, the appellant cannot be saddled with penalty. In regard to issue concerning the eligibility of credit on the parts used in the towers, there has been sufficient confusion in the matter. It is also not disputed that there was more than one view in the matter and hence following the ratio laid down by Hon'ble Apex Courts in the judgment in Continental Foundation Jt. Venture case [2007 (216) ELT 177 (SC)] and also following ....