TMI Blog2012 (4) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... 'spares' and 'accessories' -- used in sub-clause (A)(iii) of clause (a) of Rule 2 should be understood as standing for movables only. - Not eligible as Capital goods for the purpose of cenvat credit. Alternative plea - If the towers and parts thereof are not capital goods falling under Rule 2(a)(A) of the CENVAT Credit Rules, 2004, it is argued, they are liable to be recognized as 'inputs' under Rule 2(k). - held that:- it has to be, firstly, "goods" and, secondly, "used for providing any output service". The first requirement in this case is not met by the towers which are admittedly immovable structures and ipso facto non-marketable and non-excisable. Cenvat Credit on PFBs which were used as protective shelter for transmission equipments - office chairs - held that:- They are not components or accessories of any goods specified in that sub-clause either. Thus PFBs have no place in sub-clause (iii) also. Hence CENVAT credit cannot be claimed on PFBs as capital goods. The same conclusion can also be reached in respect of office chairs which are goods of Chapter 94. Further the chairs cannot be held to have been used for providing telecom service, in the absence of evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,04,39,093 2,04,39,093 ST/49/07 2. 23.4.07 10/05 to 3/06 4,41,42,943 4,41,42,943 ST/145/09 3. 8.2.08 4/06 to 3/07 3,80,77,535 3,13,03,921 -do- 4. 23.10.08 4/07 to 3/08 7,18,43,420 5,47,62,064 -do- 2. The learned Commissioner allowed CENVAT credit on antenna after noting that this item fell under Chapter 85 of the First Schedule to the Central Excise Tariff Act, 1985 and was directly used by the appellant for providing their output service and hence qualified to be 'capital goods' under Rule 2(a)(A) of the CENVAT Credit Rules. The department has, apparently, accepted this decision. 3. While adjudicating SCNs 2 TO 4, the learned Commissioner held that any item to be eligible for CENVAT credit, as capital goods, should be "goods" falling under Chapter 82, 84, 85 or 90 or under Heading 68.02 or Sub-Heading 6801.10 of the First Schedule to the Central Excise Tariff Act and also should be directly used for providing output service. He disallowed credit on tower and parts thereof after holding (a) that tower became immovable on its erection and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo microwave antennas at two different towers. Towers help Microwave antennae in avoiding obstacles like trees, buildings etc. Towers help Microwave antenna in avoiding earth's curvature. 3.1 Towers are essential to increase the coverage area of the GSM antennas. Otherwise, number of GSM antenna along with Base Transceiver Station and other equipments required would be phenomenally huge and attendant capital expenditure would be prohibitive. 3.2 Therefore, without the towers, it will be commercially inexpedient to render mobile telephone services." In paragraphs C3 to C9 of Ground 'C' of Appeal No. ST/145/09, the appellant explained the function of Base Transceiver Station (BTS) in cellular telephony, as follows: "C.3 The Cellular Mobile Telecom Service ("CMTS") is based on global system for mobile communications (GSM). The basic infrastructure of GSM is similar to all other cellular radio networks. The system consists of a network of contiguous radio cells providing a complete coverage of a service area. C.4 Each cell has a Base Transceiver Station (BTS) operating on a dedicated set of radio channels which use different frequencies than those used in adjacent cel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nna mounted on them. E.3 A pre-fabricated housing/shelter is also purchased for housing electrical equipments viz., Isolation Transformers, Batteries, and Stabilizers. Rectifier etc. and telecom equipments like BTS and Microwave/Radio Hops etc., and serves as a junction box. E.4 The Telecom installation vendor installs the BTS telecom equipments, lays cable (including feeder cables) from antenna to BTS. The electrical vendor installs the electrical equipment's and does the required wiring inside and outside the room. E.5 A separate power supply connection is taken from the concerned State Electricity Board. The Diesel Generating (DG) set is used as a back-up source for power supply in case of Mains Failure. E.6 The BTS and Microwave link is then commissioned and the site is integrated with the main network. E.7 Drive tests are carried out by the RF team for checking the coverage of the site. Any changes in terms of height, power of the antenna is done accordingly. This entire activity is completed in approximately 30 days." 7. The case of the appellant as sought to be made out in the memo of appeal is that a 'Cell Site' comprising GSM MW antennas supported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. CC [2006 (200) ELT 545 (Tri.-Bang.)] iii) CC vs. Aditi Technologies (P) Ltd. [2003 (151) ELT 343 (Tri)] iv) DSL Software vs. CC [2005 (181) ELT 250 (Tri-Bang)] v) Aztec Software Technology Services Ltd. vs. CC [2005 (189) ELT 301 (Tri-Bang)] 12. Printers which are classifiable under Chapter 84 of the CETA Schedule and are used for printing periodical bills for subscribers have also been claimed to be 'capital goods'. 13. The demand for the period from October 2004 to March 2005 and the demand for the period from April 2006 to September 2006 are claimed to be barred by limitation in appeals, ST/49/07 and ST/145/09 respectively. One of the grievances raised in appeal No. ST/145/09 is that no finding was given by the adjudicating authority on the plea of limitation. The appellant has claimed that they did not wilfully suppress any fact but provided all information asked for by the department. According to them, the extended period of limitation was not to be invoked in this case in view of the Supreme Court's judgments in Padmini Products Ltd. vs. CCE [1989 (43) ELT 195 (S.C.) ] and CCE vs. Chemphar Drugs and Liniments [1989 (40) ELT 276 (S.C.) ]. 14. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Free-Space Wavelength Range Propagation Characteristics Typical Use UHF (ultra high frequency) 300 to 3000 MHz 100 to 10 cm LOS; cosmic noise UHF television; cellular telephone; radar; microwave links; personal communication systems iv) "CELL PHONE TOWERS AS VISUAL POLLUTION", an essay by John Copeland Nagle, University of Notre Dame, which appeared in Notre Dame Journal of Law, Ethics and Public Policy, 2009 ---- " Cell phones and other personal wireless services depend on the transmission of radio signals. The easiest-----and cheapest-----way to transmit those signals is from antennas that are placed on towers. The antennas must be placed on high towers because wireless technology is relatively low-powered and requires a line-of-sight to the next tower. Coverage within an area is maintained by arranging antennas in a honeycomb-shaped grid, from which the term "cell" originates. A phone call is transferred from one tower's coverage area to another as a phone user travels. Providers want to increase the number of cells and decrease the geographic coverage of each cell in order to increase the quality of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC) ] wherein it was held that a nameplate affixed on fan was an input and essential ingredient and hence entitled to set-off of duty under Notification No.201/79-CE dt. 04.06.1979 even if the fan could perform its essential function without such nameplate, because the fan did not become marketable unless the nameplate was affixed. viii) Godfrey Philips India Ltd. Vs. UOI [1990 (48) ELT 508 (Bom.) ], wherein it was held that the word 'input' used in Notification No.201/79-CE dt. 04.06.1979 had a wide meaning and was not used synonymous with the word 'ingredient' and therefore the outers/blanks used in the packing of cigarettes to render them marketable should be deemed to be inputs eligible for set-off of duty under the Notification. ix) Vam Organic Chemicals Ltd. vs. Collector of Central Excise [1989 (39) ELT 72 (Tri. )], wherein it was held that MODVAT credit was not to be denied or varied even if non-dutiable intermediate product emerged during the manufacture of dutiable final product from duty-paid inputs (Emergence of ethyl alcohol as non-dutiable intermediate product during the course of manufacture of the dutiable final product from duty-paid molasses was not a reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision in Ispat Industries Ltd. vs. CCE, Mumbai [2006 (195) ELT 164 (Tri.-Mumbai) ] wherein credit of duty paid on angles, channels etc. which were used to fabricate structural base to make machines function without any vibration or movement was allowed under Rule 57Q of the Central Excise Rules, 1944. It was also pointed out that the Tribunal's decision was upheld by the Bombay High Court by order dt. 19/07/2007 in Central Excise Appeal No.187 of 2006 (CCE vs. Ispat Industries Ltd.). 20. The written submissions also referred to the Tribunal's Larger Bench decision in the case of Vandana Global Ltd. vs. CCE, Raipur [2010 (253) ELT 440 (Tri. LB) ] and sought to distinguish that case on facts. It was submitted that the appellant was not claiming that the tower was used in the manufacture of capital goods. The tower was used as such in providing the output service. Therefore, the decision in Vandana Global case holding that cement used for laying foundation or steel items used for building structural support were not inputs for capital goods was not applicable to the present case. The appellant further submitted that the decision in Vandana Global case holding that the supportin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers being immovable and non-excisable are not covered under clause (i), their components and parts will not be covered under clause (iii). iii) As held by the Bombay High Court in the case of CCE, Mumbai vs. Hutchison Max Telecom Pvt. Ltd. [2008 (224) 191 (Bom.)] , BTS (Base Transceiver Station) is not excisable as it is immovable and cannot be classified under heading 85.25. If that be so, the towers which are claimed to be components of BTS cannot be considered as capital goods. In this connection, the learned JCDR also relied on Board's Circular No.58/1/2002-CEX dt. 15/01/2002, apex court's judgment in CCE, Indore vs. Cethar Vessels Ltd. [2007 (212) ELT 454 (SC)] and Tribunal's decision in B.P.L. Mobile Communications Ltd. vs. CCE [2006 (198) ELT 226 (Tri.-Mumbai)] . iv) The immovable tower is nothing but a structural support for antennas. The structural support cannot be considered to be a part (let alone, integral part) of the antennas (capital goods) which it supports. Reliance placed on the Tribunal's decision in Swetha Engineering Ltd. vs. CCE, Chennai [2008 (228) ELT 68 (Tri. Chennai) ]. v) It is well known that erection of towers at different sites is a sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is untenable. viii) The towers provide support to capital goods viz. antennas. This support can be provided by a high-rise building, flyover or even a concrete tower made of bricks, iron steel and cement. It is nobody's case that the bricks, iron steel and cement required for constructing such structure to support antenna would be eligible for CENVAT credit, whether as capital goods or as inputs. As a matter of fact, the appellant has conceded that they are not seeking CENVAT credit in respect of any construction material. ix) If a tower is considered to be a part or component of an antenna, the whole item comprising the tower and antenna should have a particular name and should be classifiable under a specific tariff heading, but the appellant has not claimed so. x) If a tower is considered as a part or accessory of an antenna, the whole composite item is immovable and hence non-excisable and no CENVAT credit would be available on such part/accessory, either as capital goods or as input. xi) As per clause (iii) of Rule 2(a)(A) of the CENVAT Credit Rules, every part or component which is required for providing an output service is not covered. Only parts, components ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is not specified in the definition of capital goods, cannot, in any case, be treated as capital goods. Chairs and printers cannot also be considered as inputs as they cannot be said to have been used for providing the output service. 24. The learned JCDR also referred to the case law cited by the learned Counsel and sought to distinguish the cited cases: i) In the case of Rajasthan Spinning and Weaving Mills (supra), the chimney was held to be an integral part of the DG set and the DG set was held to be a movable item classifiable under heading 85.02 of the CETA Schedule. The word 'accessory' was loosely used in that judgment only to mean 'integral part'. In the instant case, the tower is not an 'integral part' of antenna or BTS and, therefore, the ratio of the Supreme Court's decision in the above case is not applicable. ii) In the case of Ispat Industries (supra), the Bombay High Court was dealing with the question whether angles, channels, plates etc. which were required for installation and erection of machinery in the factory could be held to be capital goods under Rule 57Q of the Central Excise Rules, 1944, which rule defined 'capital goods' through 4 explanations. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the manufacture of WOEG cannot be said to be "WOEG presented in unassembled condition" cannot be of any aid to the appellant as there is no discussion of facts or law in the said circular. Moreover, there cannot be a windmill without a tower. 25. The learned JCDR also claimed support from certain decisions of the Tribunal, as under:- i) In the case of Mundra Port Special Economic Zone Ltd. vs. CCE. Rajkot [2009 (13) STR 178 (Tri.-Ahmd.) , the expression "used for providing an output service" was interpreted and it was held that cement and steel which were used for providing the output service of "construction of building" could not be said to have been used for providing port services. In the said case, cement and steel were used in the construction of jetty and port building by the contractor, which itself was a taxable service. Therefore, the meaning of the above expression cannot be stretched so as to hold that the cement and steel were used for providing the output service viz. port services. Similarly, in the present case, the definition of capital goods or input cannot be stretched to hold that the tower parts were used by the appellant for providing the output se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and optimum function of the antenna without which the telecommunication service cannot be provided. It should be held to be an accessory of the antenna by following CST, Maharashtra State, Bombay vs. L.D. Bhave Sons [(1981) 47 SCC 318], Mehra Brothers vs. Joint Commercial Officer, Madras [(1991) 1 SCC 514] and CCE, Jaipur vs. Rajasthan Spinning and Weaving Mills Ltd. (vide supra). Alternatively, it can be held to be a part of the antenna by following the principle laid down in CCE vs. Techno Fab Manufacturing Ltd. [2003 (158) ELT 515 (Tri. Kol.)], Pushpam Forging vs. CCE, Raigad [2006 (193) ELT 334 (Tri. Mum. )] and Bharat Heavy Electricals Ltd. vs. Collector of Customs, Chennai [1999 (108) ELT 448 (Tri. Chennai) ]. iii) That the towers upon installation became immovable is irrelevant. The appellant purchased the towers in unassembled condition. The suppliers paid Central Excise duty as applicable to heading 7308 of the CETA Schedule. The towers were supplied in unassembled condition for the sake of ease and convenience of transportation. In the form they were purchased and brought to the site of installation, they were movable and, therefore, CENVAT credit cannot be denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 (146) ELT 518 (P H) ], MODVAT credit was held to be admissible on the same item as capital goods or as input. xi) The submission of the learned JCDR that a tower in unassembled condition purchased by the appellant was an input for the erection contractor and not for the appellant has to be rejected in view of the decision in Rajarambapu Patil SSK Ltd. vs. CCE, Pune-II [2007 (208) ELT 372 (Tri. Mumbai) . xii) Explanation 2 to the definition of input under Rule 2(k) is applicable only to angles and other sections of iron or steel falling under Chapter 72.16 and does not cover tower which falls under heading 73.08, if the principle laid down by the Supreme Court in the case of Siddeshwari Cotton Mills Ltd. vs. UOI and another [1989(39) ELT 498 (SC) ] is applied. 27. Examined the records including the written submissions filed from both sides in connection with final hearing of the case. We have also given mindful consideration to the submissions of the learned counsel for the appellant and the learned JCDR for the respondent. By extensively referring to technical literature, judgments and the relevant provisions of law, apart from the facts of the case, the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be treated as an input for any purpose whatsoever. Explanation 2.- Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; Explanation 2 was amended by Notification No.16/2009-CE(NT) dt. 07/07/2009. The amended text, which has been referred to by both sides, reads as follows: Explanation 2.--- Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer but shall not include cement, angles, channels, Centrally Twisted Deform (CTD) bar or Thermo-Mechanically Treated (TMT) bar and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods. 28. The appellant has primarily contended that the 'Cell Site' comprising GSM MW antennas supported by tower, and BTS and other equipments housed in PFB is an integrated system classifiable under heading 8525 of the CETA Schedule and ipso facto classifiable as capital goods under Rule 2(a)(A)(i) and, therefore, the tower, being a part of the integrated system, is capital goods falling under Rule 2(a)(A)(iii) of the CENVAT Credit Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting, installing and commissioning of the BTS/BSC Site. The Tribunal's decision was upheld by the Hon'ble High Court. Proceeding on the footing that what was assembled and installed was a new product distinct from the components from which it was assembled, the Hon'ble High Court examined its marketability. It was found that the product could not be shifted from one place to another without damage to some components. Apart from this, it was noted that it could not be re-erected in a new site in the same manner as in the previous site as the requirements of different sites were also different. It was further noted that some components of the product installed at a site were either embedded in the earth or erected on a building. For all these reasons, the Hon'ble High Court held the entire assembly of equipments installed in a particular site to be immovable and non-marketable. The Court's relevant findings read as follows: 9.............. The facts on record would indicate that the equipments erected are embedded in the earth or on a building. The Tribunal noted that revenue does not contest or dispute the fact that whenever BTS/BSC site has to be relocated, all the equipments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, the tower and parts thereof should be held to be components falling under sub-clause A(iii) of Clause (a) of Rule 2. No doubt, components, spares and accessories falling under Rule 2(a)(A)(iii) can be held to be 'capital goods' for the purpose of CENVAT credit if these are shown to be components, spares and accessories of goods falling under any of the Chapters or Headings of the CETA Schedule specified in sub-clause (i). In the present case, the appellant's bid to show that the 'Cell Site' is goods falling under Chapter 85 specified in sub-clause (i) has failed and consequently their plea for treating the tower and parts thereof as components falling under sub-clause (iii) has to be rejected. 30. Yet another line of argument found in the memoranda of appeals is that the towers are essential parts of antennas because, without the towers, the antennas cannot be installed high above the ground and cannot receive or transmit signals. The learned Counsel for the appellant has strenuously argued in support of this proposition, relying on a set of judgments. His argument is that the antennas to be operational should be placed atop towers of the requisite height, that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tood at the material time reads as under:- (1) All goods falling under heading Nos. 82.02 to 82.11; (2) All goods falling under Chapter 84 (other than internal combustion engines falling under heading No. 84.07 and 84.08 and of a kind used in motor vehicles, compressors falling under heading No. 84.14 and of a kind used in refrigerating and air-conditioning appliances and machinery, heading or sub-heading Nos. 84.15. 85.18. 8422.40, 8424.10, fire extinguishers falling under sub-heading No. 8424.80, 8424.91, 8424.99, 84.29 to 84.37, 84.40, 84.50, 84.52, 84.69 to 84.73, 84.76, 84.78, expansion valves and solenoid valves falling under sub-heading No. 8481.10 of a kind used for refrigerating and air-conditioning appliances and machinery); (3) All goods falling under Chapter 85 (other than those falling under heading Nos. 85.09 to 85.13, 85.16 to 85.31 and 85.40); (4) All goods falling under heading Nos. 90.11 to 90.13, 90.16, 90.17, 98.22 (other than for medical use), 90.24 to 90.31 and 90.32 (other than of a kind used for refrigeration and air- conditioning appliances and machinery); (5) Components, spares and accessories of the goods specified against S. Nos. (1) to (4) abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, the Tribunal was right in the view it took. [emphasis supplied] 32. Therefore we reject the learned counsel's argument that the tower should be considered as a 'component' of antenna to be classified as capital goods under Rule 2(a)(A)(iii). 33. The learned counsel has also argued that, if the tower cannot be accepted as a component of antenna, it can be treated as an accessory of antenna. A similar argument made by the learned counsel for M/s. Saraswati Sugar Mills was rejected by the apex court. The word 'accessory' is also not defined in the Central Excise Act or the rules framed thereunder. One can therefore consult dictionaries, which we have done. Different dictionaries provide substantially the same meaning for the word, as shown below:- 1) "an extra piece of equipment that is useful but not essential" ---- OXFORD ADVANCED LEARNER'S DICTIONARY OF CURRENT ENGLISH (Chief Editor -Sally Wehmeier) 2) "a supplementary part or object, as of a car, appliance etc." --- COLLINS DICTIONARY OF THE ENGLISH LANGUAGE (Editor- Patrick Hanks) 3) "something extra"; "thing added to help in a secondary way"; "a piece of optional equipment for convenience, comfort, appearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court in the case of Rajasthan Spinning Weaving Mills (supra) considered chimney to be an accessory of DG sets and, on that basis, held it to be capital goods. On a perusal of the apex court's judgment, we find that the court found no dispute with regard to the nature of chimney. The relevant observation in the judgment reads thus: "...... The parties are ad idem that diesel generating set falls under Chapter 85 under heading No.85.05, as described at Sl.No.3 of the aforesaid table (table annexed to Rule 57Q(1) of the Central Excise Rules, 1944). Similarly, there is no dispute that chimney attached with the DG set is covered by the items described in Sl.No.5 thereof. The dispute in the case, as noted by the apex court, was "whether the steel plates and MS channels used in the fabrication of chimney would fall within the purview of Sl.No.5 of the table below Rule 57Q". While dealing with this issue, their lordships described chimney as an "integral part of the DG set" and held that the steel plates and MS channels used in its fabrication had to be treated as accessories in terms of Sl.No.5 of the table annexed to Rule 57Q(1) and hence capital goods for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not any immovable item. In the case of Annapurna Carbon Industries Co. (supra) relied on by the learned counsel, the dictionary meaning of the word 'accessory' was considered and it was held that the same item could be an accessory of more than one kind of instrument. This decision was cited by the learned counsel in support of his argument that the same tower could function as accessory of different kinds of antennas viz. GSM antenna and MW antenna. Again, the cited judgment does not improve the appellant's case inasmuch as the tower being an admittedly immovable structure cannot be accessory of any kind of instrument. The appellant's admission of the immovable nature of the towers is found in para (J.3) of Grounds of Appeal No.ST/145/09. 36. A plethora of decisions were relied on by the learned counsel in his bid to show that the tower and parts thereof were capital goods falling under sub-clause (A)(iii) of clause (a) of Rule 2 of the CENVAT Credit Rules, 2004. Some of these decisions were cited in the memoranda of appeals also. We have considered all the decisions. a) In the case of Indian Copper Corporation Ltd. and J.K. Cotton Spinning Weaving Mills Ltd., the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue considered by the Bench was whether welding electrodes, wires and cables etc. were capital goods within the meaning of the explanation to Rule 57Q(1) for the period from March to October, 1994. During this period, the relevant part of the explanation to Rule 57Q(1) read as follows: (1) 'Capital goods' means - (a) machines, machinery, plant, equipment, apparatus, tools or appliances used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final products: (b) Components, spare parts and accessories of the aforesaid machines, machinery, plant, equipment, apparatus, tools or appliances used for aforesaid purpose; and (c) moulds and dies, generating sets and weigh bridges used in the factory of the manufacturer. The larger Bench relied on the above judgments of the apex court to interpret clause (a) of the above definition of capital goods and to hold that wires and cables were covered by the expression 'plant' being "items necessary for the assessee to carry on his business and being items not in the nature of consumables but items having fairly high degree of durability". Other items like control panels, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital goods classifiable under Chapter 85 of the CETA Schedule. 37. It has been argued by the learned counsel that the expression "used for providing output service" occurring in the definition of "capital goods" under Rule 2(a)(A) of the CENVAT Credit Rules, 2004 must be understood in a wider sense than the expression "used in the manufacture of goods". According to him, the word "for" widens the scope of the expression when compared to the word "in". Though this argument is impressive, it does not advance the case of the appellant inasmuch as any item to qualify as "capital goods" under Rule 2(a)(A)(iii) should, in the first place, be a component or accessory of any of the goods mentioned in sub-clause (i) or (ii), before it is used for providing of output service. The appellant urged that the tower (and parts thereof) be held to be component or accessory of BTS or, alternatively, of antenna. Neither plea has been accepted by us. Having failed to cross the hurdle, the appellant has no footing to plead that the towers (and parts thereof) were used for providing output service and hence should be held to be 'capital goods'. 38. If the towers and parts thereof are not capital goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earth cannot be dismantled without substantial damage to its components and thus cannot be reassembled, then the items would not be considered as moveable and will, therefore, not be excisable goods. (vii) When the final product is considered as immovable and hence not excisable goods, the same product in CKD or unassembled form will also not be dutiable as a whole by applying Rule 2(a) of the Rules of Interpretation of the Central Excise Tariff........ The appellant's counsel submitted that towers in CKD condition falling under sub-heading 7308 20 of the CETA Schedule were procured and brought to the sites and assembled and erected there for installation of antennas aloft. That, upon such assembly and erection, they became immovable structures is an admitted fact. On these facts, there is no question of holding the towers to be "goods" and, for that matter, to be "inputs" under Rule 2(k). 39. Explanation 2, prior to its amendment, says that "input includes goods used in the manufacture of capital goods which are further used in the factory of the manufacturer". Obviously, it is applicable only to a manufacturer of final product who manufactures capital goods out of duty-paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Bombay High Court and was held to have a wider meaning than the word 'ingredient'. In the case of Hindustan Sanitaryware and Industries, the question considered by the Supreme Court was whether moulds of plaster of Paris which were used for manufacture of sanitaryware could be treated as 'inputs' within the meaning of this term used in exemption Notification No.217/86-CE dt. 02/04/1986 as amended by Notification No.82/87-CE. In these and similar cases cited by the learned counsel, the commodities considered were all goods which were found to have been used, one way or another, in or in relation to the manufacture of the final products. The cited decisions are not applicable to the present case where the issue under consideration is whether the immovable, non-marketable and non-excisable structure viz. tower can be considered as "goods" used for providing output service and whether its components can be held to be inputs on the basis of Explanation 2 (vide supra). We have answered these questions against the appellant for definite reasons. Our reasons pertaining to the appellant's case are not relevant to the cases cited by the learned counsel, nor are the grounds on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided by the appellant. The appellant has not established sufficient nexus between printers and their output service. There is substance in this submission. The appellant has not proved that the printers were used for the purpose of providing mobile telephone service. 44. In the absence of evidence that the chairs or printers were used for providing mobile telephone service, both these items would stay outside the ambit of the definition of "input" also. 45. We have also considered the decisions cited by the appellant in the above context. In the case of Hotel Leela Venture Ltd., window cleaning equipment was held to be capital goods for the purpose of Notification No.28/97 which provided a definition for 'capital goods'. Needless to say that, in the present case, one has to consider the definition of capital goods given under Rule 2(a) of the CENVAT Credit Rules, 2004 and not one given in any Exemption Notification. In the case of Aditi Technologies (P) Ltd., the question considered by this Tribunal was whether certain furniture imported by the assessee could be regarded as 'office equipment' within the meaning of this term used in Exemption Notification No.1/95-Cus. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the above finding. The memorandum of appeal says that the appellant had no intention to evade payment of duty and therefore the extended period of limitation is not invocable. It is submitted that, for the period from October, 2004 to March, 2005, there was no legal requirement of filing CENVAT Returns, and therefore, for the said period, the relevant date would be the date of availment of CENVAT credit. In this view, the last of the relevant dates would be 31/03/2005 and therefore the show-cause notice which was issued after 31/03/2006 is clearly time-barred. On a perusal of the records, we note that this plea was raised in this manner by the party in their reply to the show-cause notice also. Apparently, the learned Commissioner did not consider this plea at all. Therefore, in both the cases, the limitation issue requires to be remanded to the learned Commissioner for careful consideration and speaking order. 47. As any finding on the question whether the appellant suppressed the relevant facts with intent to evade payment of duty will also have a bearing on the penalty issue, we are of the view that the question whether the assessee's conduct would attract any penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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