2018 (9) TMI 985

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....t, the Ld. Counsel Shri. Raghavan Ramabadran appeared and argued the matter. He furnished the details of the issues under consideration along with the demand and penalties as shown in the table below : Sl. No. Particulars Amount of credit involved (INR) Penalty 1. Credit on Towers and Shelter Materials 11,17,77,543/- 11,17,77,543/- 2. Credit availed on sale of SIM cards 15,04,201/- 15,04,201/- 3. Credit on input services pertaining to tower/shelter 9,12,30,660/- 10,19,65,784/- Credit on input services pertaining to activities relating to business 1,07,35,123/- 4. Credit availed on input services denied due to insufficient information 58,60,300/- 58,60,300/- TOTAL 22,11,07,828/- 22,11,07,828/- 2.2.1 The Ld. Counsel submitted that in respect of Sl. No. 1 in the above table which pertains to credit availed on Towers and Shelter Materials, presently the issue is decided in favour of the Revenue by the decision of the Larger Bench in Tower Vision India Pvt. Ltd. Vs. C.C.E. (Adj.), Delhi - 2016 (42) S.T.R. 249 (Tri. - LB) which was approved by the decision of the Hon'ble Bombay High Court in Bharti Airtel Ltd. ....

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.... Input service on which credit is currently disputed Precedent in favour of credit eligibility 1. Erection, construction and installation of Towers and Shelters: Services such as Civil construction, Electrical work, Labour & Misc. Charges, Erection & Installation, Erection & Painting, etc. [A to C of Annexure-1] The said services have been held to be eligible by this very Hon'ble Tribunal in assessee's own case vide Final Order No. 40194-40207/2018 dt. 22.01.2018 2. Collection charges [D] of Annexure-1 (i) Nav Bharat Tubes Ltd. Vs. C.C.E., Jaipur [2010 (18) S.T.R. 470 (Tri. - Del.)] (ii) Bajaj Finance Ltd. Vs. C.C.E., Pune-I [2018 (10) G.S.T.L. 251 (Tri. - Mum.)] [E] of Annexure-1 3. Boarding & Lodging of company officials (i) Maruti Suzuki India Ltd. Vs. C.C.E., Delhi [2017 (47) S.T.R. 273 (Tri. - Chan.)] (ii) HPCL Vs. C.C.E., Visakhapatnam [2017 (47) S.T.R. 136 (Tri. - Hyd.)] 4. Corporate Consultancy (i) Navaratna S.G. Highway Prop. Pvt. Ltd. Vs. Commr. of S.T., Ahmedabad [2012 (28) S.T.R. 166 (Tri. - Ahmd.)] (ii) Apotex Pharmachem India Pvt. Ltd. Vs. C.C.E., Cus. & S.T., Bangalore-I [2017 (50) S.T.R. 26 (Tri. - Bang.)] 5. ....

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....rty credit 21. Soil investigation for cell site Covered under 'Means' clause of definition - Soil Investigation is necessary for installing and erecting stable cell sites. 22. Subscription paid to club (i) C.C.E., Udaipur Vs. Manglam Cement [2018 (9) G.S.T.L. 7 (Raj.)] 23. Commission paid to dealers in lieu of subsidy given for handsets (i) Activity relating to business 24. Warehousing services Specified in 'Includes' clause of definition of Input Services: Storage up to place of removal 25. Laying of optical fibre Covered in means clause 2.5.2 He argued that the period involved is prior to 01.04.2011 when the definition of input service had a wide ambit as it included the words "activities relating to business". Therefore, all the above services are eligible for credit. 2.6.1 With regard to the issue in Sl. No. 4, the Ld. Counsel had given the breakup of the credit denied on this count to the tune of Rs. 58,60,300/- which is shown in the table below : Description No. of Records Credit Denied (INR) Documents not produced 43 7,27,848/- Payment Details not provided 338 14,70,513/- Inadequate Details 2....

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....ch credit. However, the Tribunal, taking note of the facts of the case, had set aside the demand for the extended period as well as the penalties for the normal period. For this, the Tribunal had relied upon the decision in Vodafone Mobile Services Ltd. reported in 2017-TIOL-1904-CESTAT-HYDERABAD. 5.2 In the present case, in para 32.0, the Commissioner has discussed the issue of limitation. It is seen that the appellants have filed their ST-3 returns regularly and have disclosed the credit availed on Tower and Shelter Materials. The allegation is that they have filed the ST-3 returns in a routine manner without specifically stating that the inputs such as Tower And Shelter Materials were erected and embedded to earth to form immovable property. We find no logic in such an allegation. 5.3 It is also stated that the appellants vide their letter dated 14.08.2006 and 03.10.2006 addressed to the Superintendent of Central Excise had intimated their activities regarding tower and pre-fabricated buildings. Thus, the appellants had disclosed all the details as required by the Department as and when called for, apart from disclosing the credit availed in their ST-3 returns. It is also ....

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....rvices which were used for repossession of vehicle by recovery agent. Here, the appellants have used the facility of Bill Collectors/Agents for recovery of the bills from customers. Thus, the said credit availed on such collection charges, in our view, is eligible. The various other services as shown in the table, except that shown in Sl. No. 22, have been held to be eligible for credit in various decisions as cited in the table. 7.2 It is also to be noted that the definition of input services during the period prior to 01.04.2011 had a wide ambit as it included the words "activities relating to business". Thus, all the services in the said table from Sl. No. 1 to 25 (except Sl. No. 22) are held to be eligible by us. 7.3 In Sl. No. 22, the appellant has availed credit on the subscription paid to club. It is not established by the appellant as to why or how such services are related to the output services provided by them. Therefore, in our view, the credit availed on subscription paid to club does not qualify as input service and therefore, the disallowance of credit on such service is upheld. 8.1 The appellant has argued that the credit of Rs. 58,60,300/- has been disallo....