TMI Blog2018 (4) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... and building - the appellant could have entertained a bona fide belief - extended period of limitation and penalties not warranted. Demand upheld for the normal period - appeal allowed in part. - ST/Misc./498/2015; ST/Stay/468, 813/2011 in ST/ 733, 1333/2011-DB - Final order no. 20059-20060/2018 - Dated:- 5-2-2018 - SHRI S.S. GARG, JUDICIAL MEMBER AND SHRI V. PADMANABHAN, TECHNICAL MEMBER Shri G, Shivadass, Advocate, For the Appellant Dr. J. Harish, Dye Commissioner(AR) For the Respondent per S.S. GARG These two appeals have been filed by the appellant against the impugned orders dt. 30/11/2010 and dt. 31/01/2011. The appellant has also filed stay petitions along with appeals. On the other hand, Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the sake of convenience, the facts of appeal No.St/733/2011 are taken. 3. The appellants are providing telecommunication services and paying the service tax on the value of the services. They are also providing maintenance or repair service, transportation of goods by road service and sponsorship service. On scrutiny of ST3 returns for the year 2008-09 and the records maintained by the assessee, it was noticed that they had taken CENVAT credit in respect of the goods like angles, channels and beams etc. falling under Chapter 72 and 73 of the CETA, 1985 which were used for erecting towers for transmission and goods like prefabricated buildings / shelters / PUF panels falling under Chapter heading 9406 which were used for housin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tower / tower material and prefabricated shelters as inputs. The towers and tower materials are essential for the provision of taxable output service. The antennas which are essential for the provision of telephone service have to be installed at the top of the tower for transmitting mobile signal into atmosphere Therefore as per the learned counsel without tower it is not possible to render telephone service effectively. It is his further submission that unless the angles, channels, beams are used to fabricate the tower, the same cannot be used for providing telephone service. Similarly prefabricated shelters and panels are used for installation of transmission devices, DG sets and other electrical and electronics instruments. It serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions on both sides. He also submitted that there are plethora of decisions in favour of the assessee demonstrating that the goods in question were admissible as capital goods. He also submitted that the Mumbai Bench of the Tribunal in Bharti Artel Limited vs. CST Pune [2013(29) STR 401 (Tri. Mum.)] ruled that CENVAT credit could not be availed. This decision of the Tribunal was upheld by the Hon'ble High Court of Bombay in Bharti Airtel Limited Vs. CCE, Pune-lll [2014(35) STR 865 (Bom.)]. The Hon'ble Bombay High Court followed the decision of the Bharti Airtel in Vodafone India Ltd. Vs. CCE, Mumbai-Il [2015(324) ELT 434 The conflict of opinion was specifically addressed in the case of Tower Vision India Pvt. Ltd. Bharti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under inputs and also on the ground that they do not qualify as accessories or components. He also submitted that the angles / channels / beams etc, are used to fabricate the towers and the activity of erection of tower does not amount to manufacture and therefore the tower in itself cannot be treated as excisable goods. He further submitted that the appellants are liable to pay interest as well as the penalties under various provisions of the Finance Act. 7. After considering the submissions of both the parties and perusal of the material on record and the various decisions relied upon by the appellant, we find that various Benches of the Tribunal have held that the appellants are not entitled to take CENVAT credit on tower / towe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit or otherwise on the towers and building and to be settled In the hands of the High court Therefore, the appellant could have entertained a bona fide belief. Hence all the penalties imposed on all the appellants herein are set aside by invoking the provisions of Section 80 of the Finance Act, 1994 8 8. To sum, we dispose of the these two appeal by holding as follows: - I. We confirm the demand of ineligible CENVAT credit and interest thereon on towers and prefabricated buildings within the limitation period. ii. Demand of ineligible CENVAT credit which confirmed along with interest by invoking extended period is set aside. iii. All the penalties are also set aside. 9. Accordingly both the appeals are disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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