TaxTMI 
TaxTMI 
2024 (2) TMI 371
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....the appellant has availed the utilized Cenvat credit of service tax paid for 'pre-fabricated building green house shelter' amounting to Rs. 1,50,48,089/-. Department formed an opinion that for anything to be called as input it should either be contained in or be consumed in while providing output service. Since "pre-fabricated building green house shelter" does not appear either to be contained in or consumed for providing the output service that the appellant were alleged to have wrongly availed the utilised Cenvat credit of said service tax. The structure was otherwise fixed to earth. Resultantly, vide show cause notice No. 2171 dated 18.10.2012 Cenvat credit amounting to Rs. 1,50,48,089/- was proposed to be recovered from the appellant a....
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....id thereupon is rightly been claimed. With these submissions, the order under challenge is prayed to be set aside and appeal is prayed to be allowed. 3. Per contra, the learned Departmental Representative has impressed upon no infirmity in the order under challenge. It is mentioned that the order has been passed in compliance of the Circular No. 137/315/2007 dated 26.02.2008 and has been passed after relying upon several decisions of this Tribunal as well as of Hon'ble High Court of Bombay wherein it was held that pre-fabricated building/towers since are fastened to earth, after their erection, these structures become immovable property and hence cannot be called as capital goods. Cenvat credit cannot be availed on such goods. However, lea....
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....rought to the site in CKD condition and with the help of nuts and bolts were got assembled and erected as towers and shelters on the site after being fabricated and erected these structures were got fastened to the earth. There is no denial to the fact that the products brought in CKD condition were the excisable commodity when these admitted facts are glanced in light of above definition of Section 3 of Transfer of Property Act, to our opinion, it is clear that the tower or shelter erected with the help of nut and bolts to a foundation on earth to provide stability and functionality does not qualify to mean "attached to the earth". Hon'ble Supreme Court in the case of Commissioner of Central Excise, Ahmedabad, Vs. Solid & Correct Engineeri....
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.... the outcome of MS angles and channels which are excisable goods in its CKD condition. Mere assembly of the said excisable CKD structure with the help of nuts and bolts will not take the item/good out of the scope of excisablity and thus such good cannot be called as something which is attached to the earth which is not eligible to be called as capital good. Resultantly, the goods in question are held to be the capital goods. The definition under Rule 9 of Cenvat Credit Rules, 2004 in terms of Rule 3 thereof the appellant is held eligible to avail the Cenvat credit. 5. We observe that in the case of Vodafone (supra) similar issue of availment of Cenvat credit in respect of towers and shelters and part thereof and services in question. The ....
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....andem to provide cellular connectivity. Thus, there is an actual use of towers and shelters in conjunction with the capital goods, namely BTS and antennae. The towers and shelters are therefore "inputs" in terms of Rule 2(k) of the Credit Rules. (viii) The eligibility to claim credit on inputs is to be determined at the time of receipt of goods in terms of Rule 4(1) of the Credit Rules. The definition of "inputs" does not contain any condition relating to emergence of immovable property to be ineligible for taking credit. (ix) Towers, which are received in CKD condition, are assembled/erected at the site subsequently giving rise to structure that remains immovable till its use for safety, stability and commercial reasons, cannot be dise....
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.....The towers which are received in CKD condition, are assembled/erected at the site subsequently giving rise to a structure that remains immovable till its use because of safety, stability and commercial reasons of use. The entitlement of CENVAT credit is to be determined at the time of receipt of goods. The fact that such goods are later on fixed/fastened to the earth for use would not make them a non-excisable commodity when received. Therefore, this question is answered in favour of the Assessee-Appellant and against the Revenue. 72. In the present case, it is not in dispute that the appellant is a taxable service provider providing passive telecommunication service. Therefore, the Assessee-Appellant is entitled for input credit on the ....