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Tata Teleservices Ltd, Tata Teleservices (Maharashtra) Ltd., Vodafone India Ltd, Idea Cellular Ltd, Vodafone Essar Ltd, Reliance Telecom Ltd, Reliance Communications Ltd Versus Commissioner of Service Tax, Mumbai/Pune

Eligibility to avail Cenvat credit for providing Cellular services - towers and pre-fabricated buildings/shelters - Capital goods - whether the appellants are to be saddled with the demands of reversal of Cenvat credit by invoking extended period or otherwise and whether penalties are to be imposed on them or not - Held that:- High Court in the case of Bharti Airtel Ltd. [2014 (9) TMI 38 - BOMBAY HIGH COURT] has held that The subject items are neither capital goods under Rule 2(a) nor inputs und .....

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rther. - appellants therein were providers of storage and warehousing services; immovable property service and business auxiliary service, for which they need to have infrastructure in its place.

In the cases in hand, with which we are dealing with are the telecommunication companies providing cellular services, we find that basically all the appellants herein are providers of telecommunication/cellular services and the facility created by them in form of towers and pre-fabricated bui .....

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the facts in these bunch of appeals. Be that as it may, we find that as the issue involved in this case is covered by the direct judgement of the jurisdictional High Court, judicial discipline demands that ratio of jurisdictional High Court is to be followed by this Bench.

Extended period of limitation - Held that:- It is evident and not in dispute that not only returns were filed periodically but audit was also conducted by the department. Even in the audit through returns were avai .....

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fraud or to evade any duty. - allegation of suppression of material facts with intent to evade tax cannot be sustained.

The demands within the limitation period as confirmed are upheld along with interest.

Levy of penalty - Held that:- as the issue was of are interpretative nature i.e., as to eligibility of Cenvat credit or otherwise on the towers and the building and had to be settled in the hands of the Hon'ble High Court, the appellants could have entertained a bonaf .....

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P. R. Chandrasekharan, Member (T),JJ. For the Appellants : Shri V Sridharan, Sr. Adv. & Shri Ashish Philip for Idea Cellular Ltd, Vodafone India Ltd., & Vodafone Essar Ltd.,Shri Naresh Thacker, Adv. Shri Gopal Mundhva & Shri Abhishek Jaju, Adv. for Reliance Telecom Ltd., and M/s Reliance Telecommunications Ltd., Shri Sunil Gupta Sr. Adv. & Shri Mihir Deshmukh, Adv. for Tata Teleservices Ltd., For the Respondent : Shri D Nagvenkar, Addl. Comm. (AR) ORDER Per: M V Ravindran: 1. Th .....

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al evidences, which are brought on record, are in form of expert's opinion issued by the Professor of Indian Institute of Technology and that covers are immovable properties and inputs. In addition to the various case laws and also the photographs of the dismantling of towers, he would submit that they would also bring on record additional evidences in the form of agreement between M/s. Tata Teleservices Ltd., and Bhrati Airtel Ltd., for Infrastructure sharing i.e, sharing of towers and cabi .....

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n perusal of the additional evidences, the appellants/applicants wants to rely upon, we find that these additional evidences may be of help to the bench for coming to a conclusion on the entire issue. Accordingly, we allow the applications for bringing on record the additional evidences and will address to them in this order subsequently. 6. M/s. Tata Teleservices Ltd., (hereinafter referred to as TTL), M/s. Vodafone India Ltd., (hereinafter referred to as VIL), M/s. Idea Cellular Ltd., (herein .....

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Tata Teleservices (Maharashtra) Ltd., 04 ST/S/93699/13 ST/85886/13 Vodafone India Ltd., 05 ST/S/95767/14 ST/87797/a4 Idea Cellular Ltd., 06 ST/S/95984/14 ST/87895/14 Vodafone Essar Ltd., 07 ST/366/10 Idea Cellular Ltd., 08 ST/443/10 Idea Cellular Ltd., 09 ST/435/11 Idea Cellular Ltd., 10 ST/30/12 Vodafone Essar Cellular Ltd., 11 ST/85886/13 Vodafone India Ltd., 12 ST/85683/14 Reliance Telecom Ltd., 13 ST/85771 to 85776/14 Reliance Communications Ltd., 7. We dispose of the stay petitions filed by .....

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the appeals for final disposal. 8. The relevant facts that arise for consideration are being recorded separately, so as to deal with them in that order. 8.1 M/s. TTL herein were issued show-cause notices dated 22/04/2010, 07/10/2010 and 24/10/2011 directing them to show cause as to why the Cenvat credit availed by them on towers, towers parts, cabin, cabin parts, medi-claim services and goods other than towers, pre-fabricated buildings and shelters availed during the period April 2004 to March .....

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ods and subsequently under the inputs. M/s. TTL were informed that they are ineligible to avail the said Cenvat credit in response to which M/s. TTL defended their action due to which the lower authorities came to a conclusion that M/s. TTL had deliberately avoided in furnishing the details and mis-declaring about the eligibility to avail Cenvat credit on capital goods/inputs. The appellant, M/s. TTL contested the issue on merits, limitation and also put in various alternative submissions. 8.2 M .....

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icated buildings, etc., as capital goods even though the said goods did not fit into the definition of capital goods due to their nature and also due to non-receipt thereof in registered premises of the assessee. Both M/s. VIL and M/s. VEL contested the show-cause notices on merits as well as on limitation. 8.3 Identical issues are raised in the show-cause notices issued to M/s. ICL, M/s. RTL and M/s. RCL. These appellants also contested the issue on merits as well as on limitation before the ad .....

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redit was held to be ineligible. All the appellants were held to have availed Cenvat credit wrongly and demands were confirmed against them along with interest and penalties were also imposed. 9. Learned Senior Advocate Shri Sunil Gupta along withShri Mihir Deshmukh, Advocate appeared for M/s. TTL. Learned Senior Advocate Shri V Sridharan along with Mr. Ashish Philip Advocate appeared for M/s. VIL, M/s. ICL and M/s. VEL. Learned Advocate Shri Naresh Thacker, Advocate along with Shri Gopal Mundhv .....

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of Rule 2 wherein the definition of capital goods and the definition of inputs, are more important. He would submit that the plain reading of Rule 2 (k) (ii) of the inputs as well as Rule 2 (a) of the capital goods definition would indicate that Cenvat credit of duty paid on the item is available for the assessee, who is providing taxable output services. He would submit that the definitions are wide in scope and simple and there is no ambiguity. He would submit that the appellants have claimed .....

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he infrastructure is used by the appellants for "business support service" or "business auxiliary service" for which the tax is discharged, hence Cenvat credit should not be denied. He would then submit that the department's objection to hold that towers and shelters upon erection and installation got converted into immoveable property and seems to be goods and become non-excisable is totally baseless; as these are also goods as Excise duty is paid on the towers. He would .....

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goods on erection and installation of the equipment at site and there is no question of they got transformed from goods into immovable property for such a proposition he relies upon the following decisions: i) CCE Vs Solid & Correct Engineering Works - 2010 (252) EST 481 (SC) ii) CCE Vs Globus Stores Pvt. Ltd., - (2011) 15 SCC 200 iii) Sirpur Paper Vs. CCE, Hyderabad - (1998) 1 SCC 400 iv) Preumal Naicker Vs. T. Ramaswami - AIR 1969 (Mad.) 346 v) Shree Arcee Steel Vs. Bharat Overseas Bank - .....

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ecoming non-excisable goods, there is no provision in the CCR for denying Cenvat credit on inputs which have been used for providing output service, on the ground that the erection or installation at site leads to an immovable property. It is his submission that it is well established that expression "use" is wide enough to include inputs in the final activities of manufacture or provision of services and credit cannot be denied on the ground that at some stage some immovable property .....

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hmita Storages Ltd., 2011 (270) E.L.T. 33 (A. P.) iv) SG Navaratna Highway 2012 (28) S.T.R. 166 (Tri. - Ahmd.) V) Laxmi Enterprises - 2014 (9) TMI 35 12. Learned Counsel also submits that towers and shelters are used by them as a service provider for providing telecommunication service (output service) as also passive infrastructure service; this plea and factum of use of towers and shelters has not been contradicted as incorrect or rejected by the adjudicating authority. Learned Counsel would a .....

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inputs. He would submit that in similar circumstances, this bench had an occasion to pass an order in the case of GTR infrastructure Ltd. Vs CST, Mumbai vide final Order No. S/1368/14/CSTB/C-I dated 11/07/2014. It is his submission that the adjudicating authority has wrongly considered various judgements which in respect of manufacturing facilities and evolution of the law needs to be considered. Learned Counsel would also submit that the department will rely upon the judgement of Bharti Airtel .....

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ight have resulted in misdirection of the findings of the Hon'ble High Court. He would then read the definition of "immovable property" in the Tansfer of Property Act, as well as in the General Clauses Act, and submit that these very phrases have been interpreted by the various High Courts, which are in favour of the assessee, he relied upon the following cases: i) MCD Vs. Gurnam Kaur - (1989) 1 SCC 101 ii) State of UP Vs. Synthetic & Chemicals - (1991) 4 SCC 139 iii) A-One Gra .....

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kh, appearing on behalf of the TTL would also submit that the show-cause notice invoking extended period is incorrect in this case as the appellant had been always submitting the returns wherein Cenvat credit availment was indicated. He would also submit that the audit of the appellant's records was undertaken and the issue was never raised. It is also his submission that one of the issues in these appeals is also regarding denial of Cenvat credit on the service tax paid on the medi-claim in .....

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ed and relocated. While supporting the arguments put forth by the learned Counsel for TTL, he would submit that the appellant herein were also rendering the services of business auxiliary services and the business support services for which the said towers are used for extending the services to various other telecom service providers. It is his submission that the said services which are provided by the appellant to other telecom agencies are under the statute and are mandated to be done so; hen .....

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ld submit that on being joint with the towers and the cables, antenna, the entire equipments transforms into a cell site but the towers and shelters are movable. It is his submission that towers and shelters can be dismantled and relocated to other places while cell site cannot be relocated. For this proposition he relies upon the judgements of the Hon'ble Apex Court in the case of Triveni Engineering & Industries Ltd. Vs. CCE - 2000 (120) ELT 273 (SC) and read the said case. It is also .....

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and the CIT Vs. Brij Lal Lohia & Mahabir Prasad Khemka - 1972 (84) ITR 273 (SC), Swaraj Mazda Ltd., Vs. CCE - 1995 (77) ELT 505 (SC) are for the propositions that additional facts, which were placed before the lower authorities were not considered by the lower authorities while coming to a conclusion and it is his submission that in these cases the appellants had produced evidences regarding dismantling of towers and shelters and re-locating the same to other places. He would rely upon the a .....

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by the authorities and there was no suppression on the part of the appellants and the appellants were being highly contested before the various forums. It is his submission that penalty be set aside, as the issue is a question of interpretation. 15. Shri Naresh Thacker, Advocate appearing on behalf of RTL and RCL would adopt all the arguments put forth by the senior counsel and hands over a chart indicating of demands in the cases of RTL and RCL. He would read the show-cause notice dated 17/11/ .....

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tices were issued invoking the extended period for the financial year 2006-2007 to 2009 to 2010 for demand; there cannot be any suppression of the facts when already the issue is in the knowledge of the department. It is also his submission that in peculiar circumstances in the show-cause notice issued to RTC, it invokes the extended period of limitation on the ground of suppression and raises demands for the years 2006-2007, 2008-2009, 2009-2010 and 2010-2011 but the demands for the period 2007 .....

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d period cannot be invoked when as an identical issue a demand has been raised. It is also his submission that no suppression of facts can be alleged if the assessee disclosed relevant information. He would submit that in the cases in hand, there is no suppression of any material fact that too with intent to evade payment of duty or non-disclosure of particulars which are not required to be disclosed by the asessee under statute. It is his submission that in the instant case, the appellant had r .....

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computation of demand is also erroneous as the revenue has considered the amount for which demand is incorporated in the show-cause notice issued by Indore Commissionerate. As regards the RCL, it is his submission that on merits he is adopting all the arguments made by the Senior Counsel. On limitation it is his submission that the appellants were issued draft audit para by the audit party intimating the appellant about the Cenvat Credit on towers, pre-fabricated buildings etc., on conducting a .....

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ich has been issued to the appellants vide letter dated 19/10/2007 and submits that though the draft audit observations communicated to the appellants on 23/07/2007 indicated that the appellant had possibly availed ineligible Cenvat Credit on the towers and shelters, but the final audit report dated 19/10/2007 did not contain the allegations on improper availment of Cenvat Credit on towers and shelters. It is his submission that in the light of the factual position, extended period invoked for t .....

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d. He would submit that similar issue was decided by the Tribunal in the case of Mundra Port & Special Economic Zone Ltd., Vs. CCE, Rajkot - 2009 (13) STR 178 (Tri-Ahmed) and also in the case of Gujrat State Petronet Ltd., Vs. CCE, Ahmedabad - 2013 (32) STR 510 (Tri-Ahmed). It is his submission that in these two cases, the Tribunal has categorically held that once the goods become immovable, Cenvat credit cannot be availed on the inputs which are concerned have bringing into existence, the s .....

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e of Andhra Pradesh Vs. Bharat Sanchar Nigam Ltd." (supra) ruling of the Division Bench of Andhra Pradesh High Court, it was held that telecommunication tower is immovable property and that it being a immovable property must have direct relevance to the issue as arising for adjudication in the said case. In the present case the issue is one which falls under the Credit Rules and as to whether towers and parts thereof fall within the scope and ambit of the specific definition of Capital good .....

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gineering Works Ltd., (1989(39) E.L.T. 169(S.C.)" concerned the nameplate affixed on a fan which was held as an as an input and an essential ingredient failing which the fan does not become marketable and covered by a notification entitling the manufacturer for set off duty on the nameplates. This decision however is ex-facie not applicable in the present context. (h) The reliance of the appellant on the judgment of the Division Bench of this Court in the case of "Deepak Fertilizers &a .....

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ax among others paid on any input or capital goods received in the factory of manufacturer of the final product, insofar as any input service is concerned, the only stipulation is that it should be received by the manufacturer of the final product. This must be read with the broad and comprehensive meaning of the expression "input service" in Rule 2(1). the input services in the present case were used by the appellant whether directly or indirectly, in or in relation to the manufacture .....

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ituated at JNPT and had claimed that it is eligible for Cenvat Credit of service tax paid on input services used for the ammonia storage tanks installed at JNPT so that input/ raw material stored therein was intended for manufacture of the final product at the factory of the appellant at Taloja. The Cenvat Credit in respect of the services of consulting engineers, technical inspection and certification, construction, erection, commissioning and installation services for the installation of the a .....

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of towers is included in "building" and/or "development" within the meaning of Maharashtra Regional and Town Planning Act,1966 (for short 'MRTP Act') or other Corporations Act. The issue arose in the context of a Notification dated 4.7.2005 issued by the Government of Maharashtra under Section 154 of the MRTP Act by which the Government of Maharashtra had sought to amend its earlier order dated 9.10.1996 thereby authorising various Municipal Corporations in the State .....

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e nature of cabins and the towers in paragraph 26 has observed as under:- "26. …....... At the same time, the tower and the cabin would be within the meaning of the "building" as well as the "development" under the BPMC Act (including other Corporation Act) and the MRTP Act respectively. The expression "development" under the MRTP Act clearly includes erection of any structure as well as any material or structural change in the building or its precinct. .....

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y Municipal Corporation Act,1988 and are exigible to property tax. It was held that the petroleum storage tanks are structures or things attached to the land and were exigible to the property tax. In paragraphs 32 and 33 it was observed as under:- (h) In the case of "Cellular Operators Association of India and Ors. Vs. Municipal Corporation of Delhi etc., (179(2011) DLT 381)", in the context of levy of fee by the Municipal Corporation of Delhi for grant of permission for installation o .....

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ellip;… 17. He would submit that the judgement of the Hon'ble High Court of Andhra Pradesh in the case of State of Andhra Pradesh Vs. Bharat Sanchar Nigam Ltd., - 2012 (25) STR 321 (AP) would squarely apply this case as their Lordships categorically recorded that towers and shelters would fall under the category of immovable property and not goods. While responding to the submission made by the learned Counsel he would submit that reliance placed by the Senior Counsel for TTL regardin .....

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and without any technical details. Subsequently, he reads the infrastructure sharing agreement between the TTL and others and submit that it is clearly spelt out what is being shared is nothing but and is an immovable property. On GTL infrastructure Ltd., it is his submission that it cannot have any precedential value in the case in hand. Subsequently, he would distinguish the various judgements relied upon by the Counsel and submit that when there is a direct judgement of the jurisdictional Hig .....

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laim limitation today. It is his submission that in the case of TTL as well as others special audit or audit which has been conducted cannot be held to be a relevant factor for non invocation of extended period. 18. We have considered the submissions made by both the sides at length and perused the records. 19. The issue involved in these cases is regarding the eligibility to avail Cenvat credit on the towers and pre-fabricated buildings/shelters; and as to whether the appellants are to be saddl .....

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dit considering them as either capital goods or inputs and utilised the said credit for discharge of service tax liability on the output service "telecom services". Another undisputed fact is that the appellants herein are also extending the facility of these towers and shelters to various other telecom service providers from whom they are receiving some consideration on which all the appellants are discharging service tax liability under the category of business auxiliary service or b .....

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inputs. In the cases in hand we find that the towers and shelters, which were received by the appellants at site were not capital goods in the form as they were received, inasmuch as they were covered under Chapter 73, the pre-fabricated shelters were covered under Chapter No. 94. The definition of capital goods do not include these two chapters in the scope, for the eligibility to avail Cenvat credit. As regards the arguments that these can be inputs we find that definition of inputs may be wi .....

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question of law which reads as under: "Whether in the facts and circumstances of the case, the Appellate Tribunal was correct and justified in holding that the Appellant was not entitled to credit of duty paid on tower parts, green shelter on the ground that tower/green shelter is "immovable property" and hence, do not qualify as "capital goods" or "inputs" as defined under the Cenvat Credit Rules, 2004? "Whether in the facts and circumstances of the case, .....

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ed buildings. The relevant paragraphs wherein the Lordship have recorded the ratio are as under: 30. In the decision of "Simbhaoli Sugar Mills Ltd. v. Commissioner of Central Excise, Meerut, (2001 (135) ELT 1239 (Tri-Del)", the appellant was a manufacturer of sugar and availed a MODVAT credit on the joints, channels, angles and MS Beams used in fabricating supporting structures for installation of equipments such as vacuum pan, crystallizers, sugar grader, elevator, etc., HR plates (bl .....

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these items used for fabricating structures to support and install various machineries of the sugar plant are capital goods in terms of the Rule 57Q. The Tribunal while allowing the MODVAT credit found that these items, except MS sections and shapes, used for raising structure to support the various machines, parts of machineries of the plant would be covered by the explanation to Rule 57Q as capital goods. The Tribunal referred to its own decision in Malavika Steel Limited's case and witho .....

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n the definition of 'capital goods' appearing in Rule 2(a) of the Credit Rules, nor can be categorized as 'input' applying Rule 2(k) of the Credit Rules. 31. In the light of the aforesaid discussion we examine whether on the rules as they stand the appellants would be entitled to the credit of the duty paid on the item in question on the output service namely the cellular service. We may observe that a plain reading of the definition of 'capital goods' as defined under Ru .....

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in the office and those used for providing output service. Further in the CKD or SKD condition the tower and parts thereof would fall under the chapter heading 7308 of the Central Excise Tariff Act. Heading 7308 is not specified in clause (i) or clause (ii) of rule 2 (a)(A) of the Credit Rules so as to be capital goods. Further the Appellants contention that they were entitled for credit of the duty paid as the Base Transreceiver Station (BTS) is a single integrated system consisting of tower, .....

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al goods are not eligible for credit and only those relatable to the output services would be eligible for credit. The goods in question in any case cannot be held to be capital goods for the purpose of CENVAT credit as they are neither components, spares and accessories of goods falling under any of the chapters or headings of the Central Excise Tariff Schedule as specified in sub-clause (i) of the definition of capital goods. Hence a combined reading of sub-clause (a)(A) (i) and (iii) and sub- .....

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the said goods in the present context cannot be classified as capital goods. 32. As regards second contention of the appellants that the tower and part thereof, the PFB and the printers would also falls under the definition of 'input' as defined Rule 2(k) also cannot be sustained. The definition of inputs as defined under rule 2(k) includes all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol, used in or in relation to the manufacture of fina .....

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diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service. Explanation (2) of sub-rule (k) is also which provides that input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. A plain reading of the definition of input indicates that in the present context, clause (i) of Rule 2 (k) may not be of relevance as same pertains to manufacturing activity and pertains .....

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therefore find no infirmity or illegality in the findings as recorded by the tribunal in holding that the subject items are neither capital goods under Rule 2(a) nor inputs under Rule 2(k) of the Credit Rules and hence CENVAT credit of the duty paid thereon was not admissible to the appellants. The appeals are devoid of merit and accordingly stand rejected. No orders as to costs. 23. It can be seen from the above reproduced ratio that the issue is now squarely covered by the decision of the juri .....

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as been indicated in the affidavit and various other submissions made. In our considered view, these arguments of the learned counsel would not carry their case ay further. In our considered view the immovable property which comes into existence at time even if it is subsequently dismantled or disassembled and shifted to other places would be having the same characteristic as it was having earlier. In our considered view, judgement of the High Court of Bombay in the case of Bharti Airtel Ltd., h .....

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roof top of a building, is under the control and possession of the passive service provider. The manner in which this 90 metre huge structure is fastened would necessitate its being excluded from the ambit of "goods", and included within the category of "immovable property". Transfer of the right to use "immovable property" would not fall within the ambit of Section 4(8) of the Act as "immovable property" is excluded from the definition of "goods" .....

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attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. The question whether a chattel is imbedded in the earth so as to become "immovable property" is to be decided on the principles of annexation to the land. The twin tests are the degree or mode of annexation, and the object of annexation. (Solid and Correct Engineering Works v. CCE (2010) 5 SCC 122. From a combined reading of the definition of "immovable property", in Secti .....

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hed to the earth. (T.T.G. Industries Ltd. V. CCE (2004) 4 SCC 751 (DB); Ad Age Outdoor Advertising Private Limited, Hyderabad v. The Government of Andhra Pradesh Judgment of APHC DB in W.P. No.23811 of 2009 dated: 11.02.2011). The 90 metre huge tower can only be erected at another place after it is completely dismantled at the existing site, and cannot be moved to another place of use in the same position. The telecommunication tower is, therefore, "immovable property" and not "go .....

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the appellants was on erection of towers and pre-fabricated buildings/shelters and interconnecting them with various wires brings into existence of a complete unit called as cell site. It was the submission that the cell site would become immovable property as has been laid down by the Hon'ble Apex Court in the case of Triveni Engineering & Industries Ltd. and this cell site cannot be shifted as such but towers and pre-fabricated buildings can be done so by dismantling. 27. We find no m .....

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d Counsel argued that the Cenvat credit availed on the towers and pre-fabricated buildings/shelters are to be allowed to them on the ground that they have been providing output service of infrastructure facilities to various other telecommunication service providers. It is the submission that if they are providing services under the infrastructure service, which in these cases is called "passive telecom infrastructure'. They relied upon the decision of the Hon'ble High Court of Andh .....

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put forth by the learned Counsel needs to be rejected at the out set itself, inasmuch as the first and foremost in all these three cases, the issue before the Hon'ble High Court and the Tribunal was that the appellants therein were providers of storage and warehousing services; immovable property service and business auxiliary service, for which they need to have infrastructure in its place. In the cases in hand, with which we are dealing with are the telecommunication companies providing c .....

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ay not apply, as the facts in those cases are totally differen than the facts in these bunch of appeals. Be that as it may, we find that as the issue involved in this case is covered by the direct judgement of the jurisdictional High Court, judicial discipline demands that ratio of jurisdictional High Court is to be followed by this Bench. 29. In one of the appellant's case i.e., TTL one more argument was of a demand of the ineligible Cenvat credit includes the Cenvat credit availed on servi .....

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ein extended period was invoked. We find strong force in the contention raised by the learned Counsel. We find in the case of TTL, RIL, RCL various audits took place and the said audit report did not indicate any error in availing the Cenvat credit on towers, pre-fabricated buildings and shelters. In the case of Vodafone Essar Ltd. and Idea Cellular Ltd., we find that arguments put forth are the same that they are availing Cenvat credit, utilised the same and had informed the department about th .....

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Vs. CCE Madras - 2003 (152) ELT 251, the Hon'ble Apex Court held that three requirements have to be cumulatively satisfied for invoking extended period while observing as under: A perusal of the proviso, extracted above, makes it clear that where duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Central Ex .....

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levied or paid or has been short-levied or short-paid or erroneously refunded; (2) that such a short-levy or short-payment or erroneous refund is by reason of fraud, collusion or willful mis-statement or suppression of facts or contravention of any provisions of the Central Excise Act or the rules made thereunder; and (3) that the same has been done with intent to evade payment of duty by such person or agent. These requirements are cumulative and not alternative. To make out a case under the p .....

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it was also conducted by the department. Even in the audit through returns were available, issues raised herein were not raised in few cases. In one of the cases Tribunal cannot lose the sight of the vital fact that final audit report during the concerned period did not indicate wrong availment of Cenvat credit on towers and pre-fabricated buildings. The omission which is subsequently alleged therefore, cannot be said to be beyond the department's knowledge. The facts in all these cases clea .....

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l the requisite particulars and additionally even audit has taken place, allegation of suppression of facts with intent to evade duty cannot be sustained. It was for the authorities to properly verify the returns and seek information or put queries, if not done so assessee cannot be penalised and more so with allegation of suppression of facts. In all these cases the appellants have not failed to disclose any particulars which were legally required to be disclosed and revenue also did not ask an .....

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od cannot be invoked. In our considered view, in all these appeals all the appellants acted under bonafide belief that they are eligible for Cenvat credit of duty paid on towers and pre-fabricated buildings and filed returns indicating availment and utilisation of credit, allegation of suppression of material facts with intent to evade tax cannot be sustained. 32. We find considerable force in the arguments raised by the learned Counsel on limitation; accordingly, we hold that the impugned order .....

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