TaxTMI 
TaxTMI 
2018 (7) TMI 1673
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....the period 1.11.2007 to 30.6.2008 and 1.7.2008 to 31.3.2008, the appellants have availed erroneous CENVAT credit on goods like angles, channels, beams, falling under Chapter 72 and 73 of Central Excise Tariff Act and prefabricated buildings/shelters/PUF panels falling under Chapter Heading 9406. Two show-cause notices dated 20.4.2009 and 9.9.2009 demanding duty of Rs. 20,53,318/- and Rs. 4,14,76,279/- were issued to the appellants. Both the show-cause notices were confirmed vide Order-in-Original No.2/2010-ST dated 10.2.2010 and Order-in-Original No.1/2010-ST dated 9.9.2010. The Commissioner of Service Tax, Bangalore has observed that the definition of word „inputs‟ contains two parts, one in respect of goods used in manufacture....
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....bdquo;inputs‟. He has relied upon the decision in the case of Commissioner of Income Tax vs. Tara Agencies: 2007 (214) ELT 491 (SC). The Commissioner while confirming the duty has also imposed penalty of Rs. 25 lakhs and Rs. 1 lakh on the appellants. Aggrieved by the order, the appellants are in appeal before this Bench. 2. The learned counsel for the appellant has submitted that the Commissioner has given a clear finding at para 15 of the Order-in-Original No.1/2010 that "the materials in questions viz., angles, channels, beams, etc., are actually used by the assessee‟s contractors for erecting the telecommunication towers and the towers so erected are used for providing telecommunication services. Therefore, I find that the....
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....ion services are not entitled for input tax credit. The learned AR has also submitted that similar was the decision in the case of Bharati Airtel Ltd.: 2014 (35) STR 865 (Bom.). Therefore, there is no force in the arguments of the counsel for the appellants. Regarding the imposition of penalty also, he has submitted that instant cases are involving only normal period and therefore, the arguments of the appellants are not valid and penalty was correctly imposed. 4. Heard both sides and perused the records. We find that to appreciate the issue as to whether the appellant would be entitled for availing CENVAT credit in respect of excise duty paid on purchase of towers and parts thereof, prefabricated buildings, reference to Central Excise C....
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....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 out 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 manufacture;" Rule 3 provides for c....
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.... (iv), (v), (vi) and (via); (viia) the additional duty leviable under sub-section (5) of Section 3 of the Customs Tariff Act : Provided that a provider of taxable service shall not be eligible to take credit of such additional duty; (viii) the additional duty of excise leviable under Section 157 of the Finance Act, 2003 (32 of 2003); (ix) the service tax leviable under Section 66 of the Finance Act; ............" 4.1 As observed by the High Court of Bombay, the following position emerges vis-à-vis the capital goods and inputs. "(i) Capital goods Only those goods qualify for Cenvat credit as capital goods which are covered under Chapters 82, 84, 85, 90, 68.02 and those ....
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....d that the issue is squarely covered by the decisions of Vodafone India Ltd. (supra) and Bharati Airtel Ltd. (supra). Therefore, following the ratio of the above judgments, we find that the legal position on this matter is clear and well settled. There is no ambiguity in the use of words in the Rules. There is a clear-cut distinction between the inputs used and eligible for credit for a manufacturer vis-à-vis inputs used and eligible for a specific provider. Therefore, we are of the opinion that the learned Commissioner order is legal and proper and as such needs no intervention. 4.3 However, considering the fact that the appellants are government undertaking and the issue in the present appeals is in the nature of interpretation ....