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2015 (2) TMI 1297 - AT - Service TaxCENVAT Credit - capital goods/inputs - towers, towers parts, cabin, cabin parts, medi-claim services and goods other than towers, pre-fabricated buildings and shelters - period involved in these appeals is 2005 to 2006 and 2007 to 2008 - time limitation - Held that:- The rules do provide for availment of Cenvat credit on capital goods as well as inputs - In the cases in hand we find that the towers and shelters, which were received by the appellants at site were not capital goods in the form as they were received, inasmuch as they were covered under Chapter 73, the pre-fabricated shelters were covered under Chapter No. 94. The definition of capital goods do not include these two chapters in the scope, for the eligibility to avail Cenvat credit. The ratio of the decision of the Hon'ble High Court of Bombay in the case of Bharti Airtel Ltd., [2014 (9) TMI 38 - BOMBAY HIGH COURT] as regards the eligibility to avail Cenvat credit would be directly applicable in all these cases - Their Lordships after considering all the detailed submissions made by the counsel before them and considering various case laws, came to a conclusion that Cenvat credit cannot be availed by the appellant therein either under the category of capital goods or inputs on the towers or pre-fabricated buildings - the issue is now squarely covered by the decision of the jurisdictional High Court, which is binding on us and is in favour of Revenue. The confirmation of demand of ineligible Cenvat credit and interest thereof on towers and pre-fabricated buildings within the limitation period are upheld in respect of all the appellants. Extended period of limitation - Held that:- The issue of availment of Cenvat credit on the towers and pre-fabricated buildings and shelters was being disputed before the various forum and hence all the appellants could have entertained a bonafide belief that they were eligible to avail Cenvat credit of duty paid on towers and pre-fabricated buildings/shelters - extended period of limitation should not be invoked - Demand of ineligible Cenvat credit which is confirmed along with interest, by invoking extended period is set aside in respect of all the appellants. Penalty - Held that:- As the issue was of are interpretative nature i.e., as to eligibility of Cenvat credit or otherwise on the towers and the building and had to be settled in the hands of the Hon'ble High Court, the appellants could have entertained a bonafide belief. Hence, all the penalties imposed on all the appellants herein are set aside by invoking the provisions of Section 80 of the Finance Act, 1994. Appeal disposed off.
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