Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2021 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (5) TMI 834 - AT - Service TaxCENVAT Credit - denial on the ground that the subject goods being attached to earth, are immovable in nature - whether the finding of the Tribunal that the towers, shelters and accessories used by the appellant for providing ‘business support services’ are immovable property is correct or not? - HELD THAT:- The finding recorded by the Delhi High Court in VODAFONE MOBILE SERVICES LIMITED, INDUS TOWERS LIMITED, TOWER VISION INDIA PRIVATE LIMITED, BHARTI INFRATEL LIMITED, VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2018 (11) TMI 713 - DELHI HIGH COURT] where it was held that machine or apparatus annexed to the earth without its assimilation by fixing with nuts and bolts on a foundation to providing for stability and wobble free operation cannot be said to be one permanently attached to the earth and therefore, would not constitute an immovable property - It is seen that the decision of the Bombay High Court in M/S. BHARTI AIRTEL LTD. (EARLIER KNOWN AS BHARTI TELE-VENTURES LTD.) VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2014 (9) TMI 38 - BOMBAY HIGH COURT] was considered by the Delhi High Court. Whether the assessees are entitled to claim CENVAT credit on the towers and shelters either as capital goods or inputs in terms of Rule 2 (a) and (k) of the CENVAT rules and whether towers and shelters would qualify as “accessories”? - HELD THAT:- The finding recorded by the Delhi High Court in VODAFONE MOBILE SERVICES LIMITED on this issue and held that There is actual use of tower and shelters in conjunction with the Antenna and the BTS equipment in providing the output service, which also includes provision of the Business Support Service. Whether the Tribunal erred in applying the nexus test with reference to MS angles and channels as according to the appellant what was bought to the site were towers, shelters and accessories in CKD/SKD conditions for providing services? - HELD THAT:- Delhi High Court in VODAFONE MOBILE SERVICES LIMITED has held that the CESTAT erred in applying the nexus test and therefore, credit has to be extended to the duty paid MS angles and channels. Whether the appellant was justified, in terms of rule 4(1) of the CENVAT Rules, in claiming CENVAT credit of excise duty paid by the manufacturer of towers and shelters after receipt of such towers and shelters at the premises? - HELD THAT:- Delhi High Court in VODAFONE MOBILE SERVICES LIMITED has held that 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 and against the Revenue. Whether emergence of immovable structure at intermediate stage (assuming without admitting) is a criterion for denial of CENVAT credit? - HELD THAT:- Delhi High Court in VODAFONE MOBILE SERVICES LIMITED, INDUS TOWERS LIMITED, TOWER VISION INDIA PRIVATE LIMITED, BHARTI INFRATEL LIMITED, VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2018 (11) TMI 713 - DELHI HIGH COURT] that towers and pre-fabricated shelters form an essential ingredient in the provision of telecommunication service as they are used for the purpose of supplying the service and would qualify as ‘inputs’ and, therefore, CENVAT credit can be availed. Appeal allowed - decided in favor of appellant.
|