2024 (7) TMI 1403 - AT - Service Tax

CENVAT Credit - tower and shelter in terms of Rule 2(k) of the CENVAT Credit Rules 2004 - input service used for providing telecommunication services/passive infrastructure in terms of Rule 2(l) of the CENVAT Credit Rules 2004 or not - HELD THAT - The issue has been settled by this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX-GURGAON VERSUS BHARTI INFRATEL LIMITED 2019 (2) TMI 1736 - CESTAT CHANDIGARH wherein this Tribunal has observed the assessee-appellant are entitled to avail cenvat credit on items towers shelter parts thereof being input used for providing output service. The CENVAT Credit availed by the appellant is allowed - impugned order is set aside - Consequently no demand is sustainable against the appellant - appeal allowed.

Summary

Issues involved:
Whether the appellant is entitled to avail credit on tower and shelter under Rule 2(k) of the CENVAT Credit Rules, 2004, and credit on input service used for providing telecommunication services/passive infrastructure under Rule 2(l) of the CENVAT Credit Rules, 2004.

Analysis:

Issue 1: Entitlement to credit on tower and shelter under Rule 2(k) of CENVAT Credit Rules, 2004:

The Tribunal considered the issue of whether the appellant could avail credit on tower and shelter as per Rule 2(k) of the CENVAT Credit Rules, 2004. Referring to a previous decision involving M/s Bharati Infratel Limited, the Tribunal highlighted that the towers and shelters, being part of the active infrastructure for telecommunication services, qualify as inputs. The Tribunal emphasized that the functional utility test is crucial in determining the eligibility of towers and shelters as inputs. It was noted that even if the towers are received in a CKD condition and later assembled on-site, leading to immovable structures, the appellant is still entitled to claim credit. The Tribunal held that the appellant is indeed entitled to avail CENVAT credit on towers and shelter parts as inputs used for providing output services.

Issue 2: Entitlement to credit on input service for providing telecommunication services/passive infrastructure under Rule 2(l) of CENVAT Credit Rules, 2004:

The Tribunal further deliberated on whether the appellant could avail credit on input services used for providing telecommunication services and passive infrastructure under Rule 2(l) of the CENVAT Credit Rules, 2004. Relying on precedents, the Tribunal set aside the impugned order and allowed the CENVAT Credit availed by the appellant. Consequently, the Tribunal ruled that no demand is sustainable against the appellant, thereby granting relief in favor of the appellant.

In conclusion, the Tribunal, based on established legal principles and prior decisions, upheld the appellant's entitlement to avail CENVAT credit on towers, shelter parts, and input services used for providing telecommunication services and passive infrastructure. The judgment provides clarity on the interpretation and application of the relevant rules in the context of the appellant's case, ensuring a fair and reasoned outcome in favor of the appellant.