2018 (6) TMI 747

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.... Cenvat Credit on tower and tower materials, which were used by the appellant for providing telecommunication service. Proceedings were initiated against the appellant proposing to deny Cenvat Credit and to recover the same along with interest and penalties, vide show cause notice dated 14/02/2008. The said proposals have been confirmed vide the impugned order against which the appellant has filed the present appeal. 2. In this connection we heard Shri Narender Singhvi, Ld. Counsel for the appellant as well as Shri Sanjay Jain, Ld DR for the Revenue. 3. The submissions advanced on behalf of the appellant are summarized below:- i. The Ld. Advocate submitted that the Cenvat Credit on the subject items is admissible to the appellant both a....

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.... that the details of the documents on the strength of which credit has been taken is not reflected in the ST-3 Returns filed by the appellant. He also relied on the decision of the Hon'ble Allahabad High Court in the case of Commissioner of Cus. & C. EX., Ghaziabad V/s Rathi Steels & Power Ltd. 2015 (321) ELT 200 (All.) in which the Hon'ble High Court has decided, in similar situation that the Revenue will be entitled to raise the demand under extended period of limitation. Finally, he submitted that the impugned order may be upheld. 5. After hearing both sides and perusal of record we note that the issue involved in the present case is the admissibility of Cenvat Credit on tower and tower materials which were used for providing Telecommun....

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....d on a premise that its earlier decision might have been incongruous with the ratio of the Apex Court's decision in Solid & Correct Engineering Works, it is clearly beyond the province of this Tribunal to embark upon such an exercise, on any grounds, including the per incuriam principle. 42. On the above analysis, we conclude that the Hon'ble Bombay High Court judgments in Bharti Airtel Limited and Vodafone India Limited, which are directly on the issue of the character of towers and shelters and parts, and held to be immovable property, constitute the binding law, insofar as we are concerned. Since the provision of towers and shelters as infrastructure used in the rendition of an output service is common to both passive and active infras....