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TMI Blog2016 (5) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... p of towers and prefabricated buildings. 2. As per facts on record, appellant is engaged in providing cellular telecommunication services and during the period relevant for the purpose of present appeal, they were discharging their Service tax liability on telecommunication services, business support services, sponsored services and goods transport services, after obtaining centralized registration with the Service tax department. It is seen that as a result of Honble Delhi High Court order passed on September, 19, 2007, demerger took place on 31.1.08 and all the assets i.e. specific infrastructure were transferred by the appellant to M/s Bharti Infrastructure Telecom (BIL). As per the appellant, the said towers and prefabricated building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot find favour in the appellants' contention that demand stand raised by way of show cause notice on 20.4.2010 in respect of period ending on 31.1.08 and is hopelessly barred by limitation. However, while confirming the demand he did not impose any penalty on the appellant on the ground that there was confusion in the department itself over the above issue. 5. The present stay petition stand filed by the appellant with a prayer to dispense with the requirement of pre deposit of the dues as also staying the recovery of the same. Shri B L Narasimhan, learned advocate appearing for the appellant argued the matter on merits as also on limitation. Shri Amresh Jain, learned DR appearing for the Revenue reiterated the reasoning adopted by the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit under sub-rules (1) and (2) shall be allowed only if the stock of inputs as such or in process, or the capital goods is also transferred along with the factory or business premises to the new site or ownership and the inputs, or capital goods, on which credit has been availed of are duly accounted for to the satisfaction of the Deputy Commissioner of Central Excise or, as the case may be, the Assistant Commissioner of Central Excise.' As is seen from the above Rule, the same provides for a facility to transfer the Cenvat credit which was lying unutilized in the accounts books of the transferor in case of sale, amalgamation, lease or transfer of business to a joint venture. Admittedly, in the present case, ownership of the towers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to have the complete control over the factory, the sale of certain capital goods would not invoke the provisions of Rule 10. In the present case also, we find that appellant continues to provide output service on which they were paying service tax and towers and other infrastructure having remained where the same were located earlier and continue to be used by the appellant. In such a scenario, we prima facie agree with the learned advocate that the denial of credit to the appellant is not in accordance with the provisions of Rule 10. However, at this stage, we make it clear that initial availment of credit in respect of inputs and capital goods used for erection of towers and prefabricated building is otherwise in dispute in a separate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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