TMI Blog2017 (6) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Technical) Shri Atul Gupta and Shri Hrishikesh, Advocates for Appellant Shri D.K. Deb, Assistant Commissioner (AR), for Respondent ORDER Per: Anil Choudhary M/s. Vodafone Essar South Ltd. has preferred this appeal against the Order-in-Original No.01-03/Commr./Meerut-I/2009 dated 30.01.2009 passed by the Commissioner of Central Excise, Meerut-I. 2. The Appellant is engaged in providing Telephone Services and availing Cenvat Credit on Service Tax paid on input services, Central Excise duty paid on inputs and Capital Goods. Such Cenvat Credit was utilised to pay the service tax liability arising on output service. For providing output service, the appellant is required to install wide range of electronic and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal dated 31.01.2007. 7. The Central Excise Officers visited the premises of the Appellant in the month of October 2007 and examined the records and found that the fact of availment of Credit was recorded in the Appellant s statutory records. 8. The Appellant was enquired vide letter dated 13.03.2008 regarding availment of credit on above said items. Further, the Appellant was asked by the department vide letter dated 18.03.2008 to reverse the credit on above said items. 9. Three further Show Cause Notices were issued to the Appellant- Show Cause Notice Dated Period Demand of CENVAT Credit 21.04.2008 Oct. 2006 to March, 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier has paid Excise Duty on these items by classifying under Chapter 85 of the Central Excise Tariff Act, 1985. (d) The extended period of limitation is not invokable. Therefore, the demands beyond the normal period off limitation are set aside. (e) Penalties imposed on the appellants are set aside. Whereas, Member Technical Concluded as follows:- 21. In the light of the foregoing, I hold that in view of the reason/ratio and finding of the Bombay High Court in the case of Bharti Airtel (supra), Cenvat Credit in respect of telecom towers, PFB and parts thereof is not available even in those cases where such credit is allowed by my ld. Brother vide para 12(b) and (c) of his judgment. Consequently, I express my resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake Cenvat Credit on towers, pre-fabricated shelters parts thereon etc. in the light of the decision in the case of Bharti Airtel Ltd. (Supra). (b) Whether Member (Judicial) is correct in holding that in Appeal No.ST/777/2009, the appellant is entitled to take Cenvat Credit to the tune of ₹ 2,59,95,327/- on shelters/parts as capital goods wherein the supplier has paid Excise Duty on these items by classifying under Chapter 85 of the Central Excise Tarriff Act, 1985. Member Technical is correct in holding that in Appeal No.ST/777/2009, the appellant is not entitled to take Cenvat Credit to the tune of ₹ 2,59,95,327/- on shelters/parts as Capital goods wherein the supplier has paid Excise Duty on these items by classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Mr. B. Ravichandran and the concurrent opinion recorded by the Hon ble President, the two issues on which difference of opinion had arisen vide the interim order dated 28.07.2015 and stand referred for resolution by this Larger Bench, are answered in favour of Revenue and against assessees . Regarding the 8 tagged appeals, we are of the considered view that the referred issues and conclusions recorded by us on these, in the appeals arisen pursuant to the difference of opinion recorded, will govern resolution of these issues presented in the tagged appeals, as well. Therefore the 8 tagged appeals are remitted to the appropriate Division Bench for determination on merits, i.e., ST Appeal Nos. ST/55227/2013, 51115, 51211, 51721, 5172 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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