2012 (4) TMI 362 - CESTAT, MUMBAI

CENVAT credit for cellular telephone service - Meaning and scope of the term capital goods - (i) antenna, (ii) tower and parts thereof and (iii) green shelter (same as PFB) - held that:- if the signal transmitting antenna is installed on a tower, the signal receiving antenna could be installed on a high-rise building or flyover, and vice versa. If the tower is held to be an accessory of the antenna erected thereon, a high-rise building or a flyover with an antenna erected thereon will also have to be considered as accessory of such antenna. To our common sense, a huge immovable structure like tower cannot be termed 'accessory' of any goods. A supplementary, subordinate, additional or extra thing which is added to make something more useful, effective, convenient etc. is understood as an accessory as per the cited dictionaries. It will be absurd to hold a gigantic immovable structure to be an 'accessory' of a small equipment placed on its top. All the three terms --- 'components', 'spares' and 'accessories' -- used in sub-clause (A)(iii) of clause (a) of Rule 2 should be understood as standing for movables only. - Not eligible as Capital goods for the purpose of cenvat credit.

Alternative plea - If the towers and parts thereof are not capital goods falling under Rule 2(a)(A) of the CENVAT Credit Rules, 2004, it is argued, they are liable to be recognized as 'inputs' under Rule 2(k). - held that:- it has to be, firstly, "goods" and, secondly, "used for providing any output service". The first requirement in this case is not met by the towers which are admittedly immovable structures and ipso facto non-marketable and non-excisable.

Cenvat Credit on PFBs which were used as protective shelter for transmission equipments - office chairs - held that:- They are not components or accessories of any goods specified in that sub-clause either. Thus PFBs have no place in sub-clause (iii) also. Hence CENVAT credit cannot be claimed on PFBs as capital goods. The same conclusion can also be reached in respect of office chairs which are goods of Chapter 94. Further the chairs cannot be held to have been used for providing telecom service, in the absence of evidence.

CENVAT credit on printers which are office equipments - there is no direct nexus between this item and the output service provided by the appellant. The appellant has not established sufficient nexus between printers and their output service. - Credit denied.

Extended period of limitation - held that:- the learned Commissioner did not consider this plea at all. Therefore, in both the cases, the limitation issue requires to be remanded to the learned Commissioner for careful consideration and speaking order.