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2018 (3) TMI 708

the credit availed on inputs/capital goods as well as towers and shelters is eligible or not? - time limitation - Held that: - credit is not eligible - as regards limitation, the issue whether credit is admissible on inputs / capital gods as well as towers / shelters was contentious for a long time and had travelled upto the Larger Bench of the Tribunal and thereafter to higher fora. Also, there is nothing to establish that appellant had availed credit suppressing facts with intent to evade duty - extended period cannot be invoked - penalties also set aside - the demand for the normal period will sustain, however, the penalties for the normal period are set aside. - Disallowance of credit on input services - Held that: - the issue stand .....

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lters and credit availed on various input services. It was also noticed that they had wrongly availed exemption under Notification No. 4/2004-ST dated 31.3.2004 on Telecom Services provided to SEZ units. Show cause notices were issued proposing to recover wrongly availed credit along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, interest and penalties and hence these appeal. Appeal No. ST/244 and 301/2010 3. The details of the show cause notices, period /issues involved, the period of dispute and amount involved is shown in the Table below:- Nature of Demand SCN Date of Notice Period Period Amount (Rs.) Amount time barred Rs. Demand within time Rs. INPUT / CAPITAL GOODS .....

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it is admissible on the angles, channels etc. used for erecting structures/towers. The Tribunal in the appellant s own case for earlier period had set aside the demand on the ground of limitation as well as the penalties for the normal period. He prayed that similar view may be taken in these appeals also. 3.1 With regard to the credit of duty paid on Towers and Shelters, he submitted that the said issue also stands covered and submitted that appellant had availed credit only on bonafide belief that credit is admissible and there was no suppression of facts with intent to evade payment of duty. He submitted that the issue in these appeals stand decided by the Larger Bench in the case of Tower Vision India Pvt. Ltd. reported in 2006 (42) STR .....

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exempts service tax payable on services provided to SEZ units and therefore the demand raised on this count cannot sustain. 4. The ld. Commissioner (AR) Ms. Hemavathi reiterated the findings in the impugned order. She argued that the appellants have wrongly availed credit of duty paid on inputs and capital goods. The fact would not have come to light but for the intervention of the department and therefore the show cause notice issued invoking the extended period is correct and proper. 4.1 In regard to the credit availed on input services, she submitted that the authorities below has rightly disallowed the credit holding that there is no nexus between the input services and the output service provided by the appellants. 4.2 In regard to th .....

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l as the penalties for the normal period. Following the same, we are of the considered opinion that the demand on this count for the extended period requires to be set aside which we hereby do. Thus the demand for the normal period will sustain, however, the penalties for the normal period are set aside. 6.1 With regard to disallowance of credit on input services, the issue stands covered by the decision in the case of Vodafone Essar South Ltd. (supra). The Tribunal in the said decision analysed the eligibility of credit on the very same services. The various services were used for providing output services. Further, the period is prior to 1.4.2011 when the definition of input services had a wide ambit as it included the words activities re .....

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this count is set aside. The appeals are partly allowed in the above terms. Appeal Nos. ST/610/2010 and ST/634/2010 8. The parties herein are hereafter referred to as assessee and department for sake of convenience. 9. Show cause notice was issued proposing to deny credit on inputs, capital goods as well as towers and shelters used for setting up towers used for providing telecommunication services. The credit availed on duty paid pertaining to towers / shelters were also proposed to be disallowed. After due process of law, the original authority disallowed the credit and confirmed the demand in respect of credit availed on inputs / capital goods and towers / shelters. The demand in respect of input services also was confirmed. However, whi .....

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1.2018, the penalties are set aside. 11. With regard to the demand raised on input services, the facts reveal that the various input services on which assessee has availed credit are erection and installation services, construction etc. These were used for erecting the towers and shelters and PFBS for the period April 2008 to March 2009. The period involved being prior to 1.4.2011, we hold that the services would fall within definition of input services. The disallowance of credit is unjustified. The impugned order to extend disallowing of credit on input services is set aside. However, while disallowing the credit on input services, the Commissioner has wrongly involved the provisions pertaining to inputs for which reason alone the departm .....

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