CENVAT Credit - capital goods - input services - fabrication, erection, installation of towers and shelters - extended period of limitation - penalty - HELD THAT:- The issue relating to the admissibility of credit of inputs/capital goods and services used in the fabrication, erection and installation of towers and shelters has been long in dispute. Bombay High Court in the case of 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], VODAFONE INDIA LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, MUMBAI II [2015 (9) TMI 583 - BOMBAY HIGH COURT] held that to produce telecommunication service, cenvat credit on towers, prefabricated shelters and their accessories cannot be availed as the towers are fixed to the earth and became immovable property and ipso facto, non-marketable and non-excisable.
Delhi High Court in the case of 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]., 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], Delhi High Court have taken a contrary view after examining and distinguishing the judgment of Bombay High Court - the credit, of inputs / capital goods and services utilized in fabrication, erection, installation of towers and shelters by the appellants, is admissible to them.
Credit of various services availed by the providers of telecom service - HELD THAT:- The credit taken and availed by the appellants on all the impugned services except the service relating to dismantling of towers (in respect of show cause notice dated 13.10.2011) is admissible to them - the appellants have not submitted any suitable reason to consider that the said service is required and the same is in the furtherance of their business - credit availed on service relating to dismantling of towers is not admissible to them.
Validity of SCN - HELD THAT:- It is not understood as to how the learned Commissioner has come to the conclusion on the credit availed by the appellants in respect of each of the services. Understandably, the onus of identifying the service and the credit irregularly availed, if any, by the appellants is squarely on the department. So, it is very difficult to uphold show cause notices and orders issued without clarity of either allegation or confirmation.
Time limitation - HELD THAT:- In addition to the fact that the appellants are regular assessees who have been filing ST-3 Returns, the appellants have been issued show cause notices dated 22.09.2009 and 08.10.2010. This being the case, it is not possible to invoke extended period by alleging suppression of fact with an intent to evade payment of duty in respect of show cause notices dated 14.10.2010 and 13.10.2011 - it is not possible for this Bench to hold that the department is free to invoke extended period in the subsequent show cause notices - the credit is admissible to the appellants and as such the appeal survives on merits and any findings on limitation etc. would be redundant.
The impugned order is set aside, except to the extent of confirmation of credit availed on services relating to dismantling of towers for the normal period - appeal allowed in part.