TaxTMI 
TaxTMI 
2018 (2) TMI 1109
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....software service, business consultancy service, technical testing and analysis service etc. Appellant has taken centralized service tax registration at NOIDA in respect of all its taxable service activities provided from various locations throughout India. 2. In the financial year 2006-07, appellant opened an Electro Magnetic Compatibility (EMC) and Durability Test Lab (testing lab) at Chennai from where the appellant started providing product testing & certification service and concept manufacturing services to various customers. This lap offers product compliance testing for various physical parameters such as environmental testing which include thermal shock, rain, dust, temperature cycling, humidity and full European compliance....
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....gainst the said order appellant is before us. 2. Ld.Counsel for the appellant submits that although the appellant has shown the goods on which they have taken the Cenvat credit as capital goods if they do not qualify as capital goods in terms of Rule 2(a) of Cenvat Credit Rules, 2004, the said goods be treated as inputs in terms of Rule 2(k)(ii) of the Cenvat Credit Rules, 2004. Therefore they are entitled to avail Cenvat credit. It was also alleged that value of these inputs have not been formed the part of assessable value. The appellant is not entitled to get Cenvat Credit. It is the contention of the ld.Counsel that Cenvat Credit Rules nowhere provides that value of inputs or capital goods is to be formed the part of assessable value....
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....he submissions. 6. The short issue involved in the matter is that whether on the items in question appellant is entitled to avail Cenvat credit on not. We find that the appellant has taken Cenvat credit as capital goods on the goods in question. Although they do not qualify as capital goods as per Rule 2(a) of Cenvat Credit Rules, 2004, but in alternate it is the claim of the appellant that these goods be treated as inputs in terms of rule 2(k)(ii) of Cenvat Credit Rules, 2004. For better appreciation Rule 2(k) is reproduced below:- RULE 2... (k) input means (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of fina....
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....very clear. All inputs used for providing output service. We fail to understand from where the term consumed has been brought by the ld.Commissioner in the impugned order. In fact the input is required to be used for providing output service. Admittedly these inputs have been used by the appellant for providing output service. The similar issue came up before the Tribunal in the case of GTL Infrastructure Ltd. (supra) wherein this Tribunal has observed as under:- "8. On going through the above said provision of Rule 2(k)(i) ibid, we find it deals with manufacturing activity. Admittedly, the appellants are providing output service, therefore, Rule 2k(ii) ibid, is relevant to the facts of the case in hand, wherein, it has been said t....
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....s for providing that service is entitled for Cenvat Credit as per Rule 2(k)(ii) of the Cenvat Credit Rules, 2004. Further, we find that the adjudicating authority has heavily relied upon the decision of Bharti Airtel Ltd. (supra); in the said case the facts are totally different to the facts of the case in hand. In fact in that case appellant was engaged in providing cellular telephone service and as per Board Circular No. 137/315/2007-CX-4, dated 26-2-2008, it is clarified that no Cenvat Credit on towers and BTS cabin is permissible for Cellular Phone Service Provider. In the instant case, the towers and the cabins are used by the appellant as Passive Telecom Infrastructure for providing output service namely Business Auxiliary Service as ....