TMI Blog2017 (7) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible to avail CENVAT credit on the structural steel used for fabrication and erection of unipoles for display of hoardings and advertisements - the appellant is not eligible to avail the CENVAT credit of Central Excise duty on structural steel used for fabrication and erection of unipoles. Extended period not invocable - demand upheld for the limitation period of one year from the date of issue of show-cause notice along with interest, the demand beyond the period of limitation is liable to be set aside. Penalty - Held that: - Since the issue involved in this case was in litigation, the question of visiting the appellant with penalty does not arise. Accordingly, the penalty is set aside. Appeal allowed - decided partly in favor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period January 2007 to July 2008. The show-cause notice is invoking the extended period on the ground that there was suppression of facts as to not divulging the details to the Revenue Authorities has to ascertain whether these goods were used for providing output service or otherwise. At the outset, I find that the issue involved in this case regarding eligibility to avail CENVAT credit on the structural steel is decided by various judgements and recently by the decision of the Tribunal in the case of Uni Ads Ltd Vs CCE, Cus ST Hyderabad [2016(42) STR 547(Tri-Bang)]. In the said judgement, the Tribunal has held that assessee is not eligible to avail CENVAT credit on the structural steel used for fabrication and erection of u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to the credit of the duty paid on the item in question on the output service namely the cellular service. We may observe that a plain reading of the definition of capital goods as defined under Rule 2(a)(A) of the Credit Rules show that all goods falling under Chapter 82, Chapter 85, Chapter 90, Heading No.6805, grinding wheels and the like, and parts thereof falling under Heading 6804 of the First Schedule to the Central Excise Tariff Act; pollution control equipments; components, spares and accessories of the goods specified at sub-clauses (i) and (ii) which are used either in the factory for manufacture of final products but does not include any equipment or appliance used in the office and those used for providing output servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) used for providing output services can only qualify as capital goods and none other. Admittedly the goods in question namely the tower and part thereof, the PFB and the printers do not fall within the definition of capital goods and hence the appellants cannot claim the credit of duty paid on these items. Even applying the ratio of the judgments as relied upon by the appellants as observed above the said goods in the present context cannot be classified as capital goods. 32. As regards second contention of the appellants that the tower and part thereof, the PFB and the printers would also falls under the definition of input as defined under Rule 2(k) also cannot be sustained. The definition of inputs as defined under Rule 2(k) incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice. Tower and parts thereof are fastened and are fixed to the earth and after their erection become immovable and therefore cannot be goods. 5. In view of the foregoing, the impugned order is upheld to the extent the demand is within the limitation period of one year from the date of issue of show-cause notice along with interest, the demand beyond the period of limitation is liable to be set aside and I do so. Since the issue involved in this case was in litigation and decided at Tribunal's hands, the question of visiting the appellant with penalty does not arise. Accordingly, the penalty is set aside. 6. Appeal is disposed of as indicated herein above. (Order pronounced and dictated in open court) - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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