Pre- fabricated shelters, tower, tower material are eligible for CENVAT Credit

[CA Bimal Jain]

The CESTAT, Chandigarh in TOWER VISION INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX-DELHI - 2023 (9) TMI 358 - CESTAT CHANDIGARH set aside the demand order passed by the Adjudicating Authority and held that, Cenvat credit can be availed on pre-fabricated shelters, towers and tower material which form an essential ingredient in the provision of telecommunication service would qualify as inputs and input services. Accordingly, Cenvat credit will be allowed.

Facts:

M/s. Tower Vision India Private Limited (“the Appellant”) is engaged in providing telecom network infrastructure support services to various telecommunication companies providing mobile services.

The Revenue Department (“the Respondent”) conducted audit and found that the Appellant has wrongly availed the Cenvat Credit on Pre-fabricated Building (telecom shelter) and Towers, Tower materials, Tower structures which falls under CETH 94060091 & 730820190 by declaring these items as capital goods. Secondly, the Appellant has wrongly availed Cenvat credit of services utilized in relation to Pre-fabricated shelters and Towers as input service providing output service.

Accordingly, 2 Show Cause Notices first dated October 26, 2010 and second dated September 20, 2011 (“the SCN’s”) were issued by the Respondent.

Thereafter, the Adjudicating Authority vide an order dated October 09, 2012 (“the Impugned Order”) confirmed the demand of Cenvat credit.

Aggrieved by the Impugned Order the Appellant filed appeal before the CESTAT.

The Appellant contended that tower/tower material/telecom shelters are movable goods received in CKD condition by the Appellant and therefore, the Appellant is eligible to avail Cenvat credit. Moreover, these goods are considered movable therefore the supplier has paid Excise Duty, whose credit is availed by the Appellant.

Issue:

Whether the Cenvat credit on tower, tower material, shelters is available if the assessee provides telecom network infrastructure support services?

Held:

The CESTAT, Chandigarh in TOWER VISION INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX-DELHI - 2023 (9) TMI 358 - CESTAT CHANDIGARH held as under:

• Noted that, the word “used” should be understood in a wide sense, so as to include passive as well as active use, the towers in CKD condition are used for the purpose of supplying the service and therefore, would qualify as “inputs” and 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.
• Relied upon the Judgement 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 wherein the Hon’ble Delhi High Court held that, Cenvat credit can be availed on towers and pre-fabricated shelters which forms an essential ingredient in the provision of telecommunication service as, used for the purpose of supplying the service and would qualify as ‘inputs’.
• Relied upon the Judgement of BHARTI HEXACOM LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL GOODS AND SERVICE TAX JAIPUR-I - 2021 (5) TMI 834 - CESTAT NEW DELHI wherein CESTAT, New Delhi has allowed the appeal of the assessee by holding that the appellant is eligible to claim cenvat credit on tower, tower material and telecom shelter etc.
• Held that, the Appellant can avail Cenvat credit on tower/tower material/ shelter etc.
• Set aside the Impugned Order.

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