2019 (8) TMI 70

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....st denial of Cenvat credit while appeal ST/2757/2011 is filed by the department against non-imposition of penalties. 3. We heard both sides and perused the records. 4. The issue which falls for consideration in this case is whether the assessee, who renders advertisement services, is entitled to Cenvat credit on angles, shapes, sections and channels etc., used for erection of "Unipoles"/hoardings which are fixed to the earth and on which the appellant/assessee displays advertisement. It is not in dispute that the assessee is involved in rendering advertisement services and has been paying service tax on them. The only question is whether the assessee is entitled to the Cenvat credit on these materials. It is the case of the department....

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....ed in 2010 (5) SCC 122, also reported in 2010 (252) ELT 481 (SC). After examining the matter in depth the Hon'ble Apex Court held that the General Clauses Act does not define the term "attached to the earth". However, Section 3 of the Transfer of Property Act gives the following meaning to the expression "attached to the earth". "(a) Rooted in the earth as in the case of trees and shrubs; (b) Embedded in the earth as in the case of walls and buildings; (c) Attached to what is so embedded must be for the permanent beneficial enjoyment of that to which it is attached." 5. Learned counsel submits that in this case the hoardings are attached to the foundation embedded in earth with nuts and bolts. Such attachment i....

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....that they are entitled to the Cenvat credit on the goods in question. 6. Learned departmental representative reiterates the findings of the lower authorities and asserts that the assessee's appeal needs to be dismissed. He further argues that the only error in the impugned order is the first appellate authority not imposing penalty upon the appellant. 7. We have considered the arguments on both sides and perused the records. We find the issue is no longer res integra. It has been held by the jurisdictional High Court of Andhra Pradesh in the case of Sai Samhita Storages Pvt Ltd (supra) that steel and cement used in erecting structures which were in turn used for rendering services are eligible inputs for availing Cenvat credit. Simila....