TaxTMI 
TaxTMI 
2021 (10) TMI 186
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Whereas, a total amount of demand was Rs. 97, 76, 70,042/-, the adjudicating authority confirmed an amount of Rs. 80, 93, 75,263. Details of Show Cause Notices are as under. SCN No. & Date Period Amount (Rs.) 26/2010 08.10.2010 2009-10 21,91,58,701 27/2010 14.10.2010 2008-10 75,27,87,242 10/2011 13.10.2011 2010-11 57,24,099 2. Learned Counsel for the appellant submits his submissions Show Cause Notice wise. Regarding the first Show Cause Notice dated 08.10.2010, he submits that the credit involved on capital goods and inputs was only 2,19,754 and the credit involved on Erection, Commissioning or Installation Service and Construction Service, availed from companies like M/s Aster Tele Services, was Rs. 21,89,38,947; Learned Commissioner has wrongly held that the erection of towers and shelters and the services utilized in the erection, commissioning or installation of towers and shelters is not in or in relation to the services rendered by the appellants; the appellants did not substantiate as to how these services were related to the output services. The appellants submit that the entire demand is prior to 01.04.2011 when the rules were amen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 3,66,70,444; in respect of other services mentioned in the Show Cause Notice, the appellants did not avail credit on the same; there is an overlap of demand for the period 2009-10,on the credit availed of duty paid on materials/services used in erection, painting, installation of towers and shelters; subsequent Show Cause Notice has been issued invoking extended Period. Learned Counsel submits that the impugned order finds that the credit on disputed services adds up only to Rs. 36,45,08,112; the SCN dated 14.10.2010 did not carry any proposal for Rs. 38,44,55,550; however, proceeds to confirm the total amount giving relief only to the extent of demand already raised in the Notice dated 8-10-2010.He submits that such Show Cause Notice and impugned order being vague, un-substantiating should be set aside. 3.1. In the alternative, Learned Counsel submits that Cenvat credit is admissible on all the services mentioned therein as per the reasons or the case law cited against the services as below: Input services held to be inadmissible Submissions Civil construction, electrical work, Erection, Installation Final Order No. 42376 of 2018 dated 03.09.2018; Final Order No. 4....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sue was subjected to wide litigation where two co-ordinate Benches of the Hon'ble High Courts have courted differing views; in view of the same, Hon'ble Tribunal had set aside the invocation of extended period in disputes of credit availed on towers and shelters in Final Order No. 40194-40207 of 2018 dated 22.01.2018; further, the decision of the Hon'ble Supreme Court in Nizam Sugar Factory Vs CCE - 2008 (9) STR 314 (SC) is applicable; Show Cause Notices dated 14.10.2010 13.10.2011issued subsequent to the Show Cause Notice dated 08.10.2010, cannot invoke extended period of limitation. 6. Learned Authorised Representative reiterates the findings of the impugned order. 7. Heard both sides and perused the records of the case. Brief issues require ourconsideration is in the instant appeal are as to (i) Whether the credit on inputs and capital goods / services used in fabrication, erection, installation of towers and shelters is admissible to the appellants. (ii) Whether the credit of various services disputed in the show cause notice issued to the appellants is admissible to them. (iii) Whether in the facts and circumstances of the case extended period ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., this Court sees no difficulty in holding that the manufacture of the plants in question do not constitute annexation and hence cannot be termed as immovable property for the following reasons : (i) The plants in question are not per se immovable property. (ii) Such plants cannot be said to be "attached to the earth" within the meaning of that expression as defined in Section 3 of the Transfer of Property Act. (iii)The fixing of the plants to a foundation is meant only to give stability to the plant and keep its operation vibration free. (iv) The setting up of the plant itself is not intended to be permanent at a given place. The plant can be moved and is indeed moved after the road construction or repair project for which it is set up is completed. 38. A machine or apparatus annexed to the earth without its assimilation by fixing with nuts and bolts on a foundation to provide for stability and wobble free operation cannot be said to be one permanently attached to the earth and therefore, would not constitute an immovable property. Thus, the Tribunal erred in relying on the Bombay High Court in BhartiAirtel Ltd. (supra). It is als....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ting oils, greases, cutting oils, coolants, accessories of the final products cleared along with 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 output 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 manufacturer; " Explanation 2 was amended by Notification No. 16/2009-C.E. (N.T.), dated 7-7-2009. The amended text, which has been referred to by both sides, reads as follows : Explanation 2. - Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer but shall not include cement, angles, channels. Centra....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case, it is evident that the towers form part of the active infrastructure as the antennae cannot be placed at that altitude to generate uninterrupted frequency. Further, these shelters are accessories for the placement of various BTS equipment and other items for it to remain in a dust-free, ambient temperature. 47. From the foregoing discussion, clearly towers and shelters support the BTS in effective transmission of the mobile signals and therefore, enhance their efficiency. The towers and shelters plainly act as components/parts and in alternative as accessory to the BTS and would are covered by the definition of "capital goods". 48. In the present cases, the Tribunal, in this Court's view erred in interpreting the definition of "capital goods". It merely adopted the ratio laid down by the Bombay High Court in the case of the BhartiAirtel (supra) and Vodafone India (supra). Both those are subject matter of appeals before the Supreme Court. This Court is of the opinion, with due respect to the Bombay High Court that those two judgments are contrary to settled judicial precedents, including the later view of the Supreme Court in Solid and Correct Engineering (s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t an abbreviation and whatever is used for providing output service, would be an input. The assessee submitted that it is impossible to provide the telephone services, without the tower. Further, pre-fabricated shelters and panels are used for the installation of transmission devices, DG sets and other electronic instruments. It was further, argued that a reading of the rule, made out a clear distinction between the inputs used in the manufacture of excisable goods and the inputs used for providing output service. While, in the case of manufacturing activity, for the goods to qualify as "input" within the meaning of Rule 2(k) of the Credit Rules, they had to be "used in" or "relation to" to the manufacturing activity. In the case of service, the goods only need to be "used for" providing the output service, and the definition does not stipulate that the goods should be used in or consumed in the provision of the output service. The assessees relied on Indian Chamber of Commerce v. Commissioner of Income Tax, WB - AIR 1976 SC 348, while interpreting the term 'for' it was held that : "For used with the active participle of a verb means for the purpose of (See judgment of Wes....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntegrally connected to the rendition of the telecommunication services. Re Question No. 3 : Whether the CESTAT erred in applying the nexus test with reference to MS angles and Channels, whereas according to the appellant what was bought to the site were towers, shelters and accessories in CKD/SKD conditions for providing services? ... ... .... 73. The conclusion of CESTAT, denying the assessee Cenvat credit on the premise that the towers erected result in immovable property, is erroneous and plainly contrary to Solid and Correct Engineering (supra). The towers that are received in CKD condition, are erected at site, subsequently, giving rise to a structure that remains, safe and stable (commercial reasons of use). The fact that in the intermediate stage, an immovable structure emerged, is of no consequence, in the facts of the present case. It is a settled principle of law that entitlement of Cenvat credit is to be determined at the time of receipt of the goods. If the goods that are received qualify as inputs or capital goods, the fact that they are later fixed/fastened to the earth for use would not make them a non-excisable commodity when receive....
X X X X Extracts X X X X
X X X X Extracts X X X X
....une-I - 2018 (10) G.S.T.L. 251 (Tri. - Mum.) it was held that assessee is entitled to CENVAT Credit on input services 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." In view of the above, we find that the appellant's claim of credit of various inputs services is no longer res integra as the same has been decided by this very Bench vide order cited above. We hold that the credit taken and availed by the appellants on all the impugned services except the service relating to dismantling of towers (in respect of s....