TaxTMI 
TaxTMI 
2025 (1) TMI 66
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....nts [In TAXC Nos. 33 & 38 of 2018]:-Mr. Ashutosh Singh, Kachhawaha, Advocate. For the Respondent [In TAXC No. 132 of 2018] :-Mr. Sandeep Dubey, Advocate. JUDGMENT ON BOARD 1. These three tax appeals have been preferred under Section 35(G) of the Central Excise Act, 1944, two are by the Appellant-BSNL and other one by the Respondent-Revenue. 2. The two appeals preferred by the Appellant-BSNL, i.e. Tax Case No. 33/2018 and Tax Case No. 38/2018 were admitted for hearing respectively on 18.6.2018 and on 26.6.2018 by formulating the following common substantial questions of law:- "(i) Whether in the facts and circumstances of the case, the Appellate Tribunal was correct and justified in holding that the Appellant was not ent....
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....xtended period of limitation without even considering the grounds raised by the department for invoking extended period of limitation? 4. The aforesaid challenge has been made on the following factual background:- (I) Appellant-BSNL was the holder of Service Tax Registration No. AABCB5578GST463 for providing telecommunication service and was availing CENVAT credit on capital goods and input services in terms of CENVAT Credit Rules, 2004 (for short "CCR-2004"). The appellant herein during the period 2005-06 to 2007-08 availed CENVAT credit of Rs. 5,40,46,663/- on tower materials/shed and parts thereof and pre-fabricated building materials classifiable under Chapters 72, 73 and 94 of the Central Excise Tariff Act, 1985. During the....
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.... though the CGM was neither registered as input service distributor nor issued any invoice for distributing the input service credit to the Appellant. Further, during the period 2006-07 and 2007-08 the Appellant-BSNL had availed excess CENVAT credit of Rs. 38,20,661/- and on being pointed out, they reserved CENVAT credit of Rs. 36,64,869/-. (II) For the aforesaid reasons, total Rs. 5,40,46,663/- was wrongly availed by the Appellant-BSNL, which was recoverable from them. Therefore, a Show-Cause Notice was issued to the Appellant on 17.9.2010 proposing disallowance and recovery of the wrongly availed CENVAT credit of Rs. 5,40,46,663/- along with applicable rate and penalty. The said Show-Cause Notice was adjudicated by the Commission....
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....r the bona fide belief that the duty paid on such components and items used for erection of towers are eligible to them and therefore revoked the penalties. (IV) Against the dismissal the two appeals of the Appellant-BSNL, the Appellant-BSNL has preferred the two tax cases herein i.e. Tax Case Nos. 33 and 38 of 2018 and against the setting-aside of the penalties and interest, the Respondent has preferred Tax Case No. 132 of 2018. 5. In the two appeals i.e., Tax Case Nos. 33 and 38 of 2018, preferred by the Appellant-BSNL as well as in the appeal preferred by the Respondent-Revenue, i.e., Tax Case No. 132 of 2018, the above-mentioned common questions of law, as shown in paragraphs 2 & 3 of this judgment respectively, have been fo....
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.... High Courts have been challenged before this Court by the respective aggrieved parties, by way of the present set of appeals." 9. Their Lordships of the Supreme Court, considering the said issue involved in Bharti Airtel Ltd. (supra) have held in paragraphs 11.12.5, 11.12.6., 11.13 & 11.14 as follows:- "11.12.5. What we have noted also is that the CESTAT rejected the plea of the Assessee that towers and parts thereof are inputs under Rule 2(k) by observing that the towers are admittedly immovable structures and hence ipso facto non-marketable and non-excisable and these do not lead to manufacture of goods and that towers and PFBs certainly are not used for providing mobile services. By relying on Explanation-2 to Rule 2(k) whic....