TMI Blog2023 (9) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... NTRAL GOODS AND SERVICE TAX JAIPUR-I [ 2021 (5) TMI 834 - CESTAT NEW DELHI ] wherein the division bench has noted all the five questions framed by the Hon ble Delhi High Court and answered each questions with a detailed reasons and after following the decision of the Hon ble Delhi High Court has allowed the appeal of the assessee by holding that the appellant is eligible to claim cenvat credit on tower, tower material and telecom shelter etc. Thus, the impugned order denying the cenvat credit on input and input services, capital goods on tower, tower material and shelter etc. are not sustainable in law - appeal allowed. - HON BLE Mr. S. S. GARG, MEMBER (JUDICIAL) HON BLE Mr. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Gajendra Maheshwari, Advocate for the Appellant Shri Rajeev Gupta, Shri Nikhil Kumar Singh and Shri Narinder Singh, Departmental Representatives for the Respondent ORDER Per : S. S. GARG The present appeal is directed against the impugned order dated 09.10.2012 passed by the Commissioner of Central Excise, New Delhi whereby the Ld. Commissioner has confirmed the demand of cenvat credit of Rs. 30,07,90,763/- for the period 2006-07 to 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit on input, input services and capital goods in the following cases: Bharti Infratel Ltdcases (Appeal no. ST/ 52951,52377- 52378/2015) - Order dated 21 February 2019 Bharti Infratel Ltd. v Commissioner of Service Tax, Delhi- IV (Appeal NoST/52382/ 2015-Cus-(DB) - Order dated 22 May 2019 Indus Towers Limited v CCE ST, Delhi-IV (Appeal NoST/51115/2015) along with other tagged matters - Order dated 23 May 2019 Indus Towers Limited v CCE ST, Delhi-IV (Appeal No ST/51211/2015) - Order dated 19 December 2019 Copies of all the orders are also annexed with the written submissions filed by the Ld. Counsel for the appellant. 5. He further submitted that the Revenue has filed appeals against the orders passed by this bench before the Hon ble High Court of Punjab and Haryana and the same are pending before the Hon ble High Court, but the Hon ble High Court has not granted any stay in any of the cases filed by the Revenue. 6. He further submitted that the items in question, namely, tower, tower material and telecom shelters are movable goods received in CKD condition by the appellant and its eligibility to avail Cenvat credit is determined at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the division bench of CESTAT Principle Bench at New Delhi in identical facts has examined the issues in the case of Bharti Hexacom Ltd. vs. CCE Customs, Jaippur-I reported in 2021 (52) GSTL 62 (Tri.-Del.) wherein the division bench has noted all the five questions framed by the Hon ble Delhi High Court and answered each questions with a detailed reasons and after following the decision of the Hon ble Delhi High Court has allowed the appeal of the assessee by holding that the appellant is eligible to claim cenvat credit on tower, tower material and telecom shelter etc. It is pertinent to reproduce the said findings provided in Para 10 to 22 and are being reproduced herein below:- 10. The Delhi High Court in Vodafone Mobile Services framed five questions of law to be answered. It would be pertinent to refer to the said five questions and the view expressed by the Delhi High Court. 11. Question No. 1 is whether the finding of the Tribunal that the towers, shelters and accessories used by the appellant for providing business support services are immovable property is correct or not? 12. The finding recorded by the Delhi High Court is as follows : 38. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to include passive as well as active use. The towers in CKD condition are used for the purpose of supplying the service and therefore, would qualify as inputs . There is actual use of tower and shelters in conjunction with the Antenna and the BTS equipment in providing the output service, which also includes provision of the Business Support Service. The CESTAT has failed to appreciate that the towers and the parts thereof and the pre-fabricated shelters are inputs, in accordance with the provisions of Rule 2(k) of the Credit Rules. The CESTAT has erred in holding that there is no nexus between the inputs and the output service. The CESTAT also failed to consider the decision of the Andhra Pradesh High Court in the case of the M/s. Indus Towers Ltd. v. CTO, Hyderabad [(2012) 5 VSR 447], which clearly ruled that the towers and shelters are indeed used and are integrally connected to the rendition of the telecommunication service. (Emphasis supplied) 16. The third question framed by the Delhi High Court is whether the Tribunal erred in applying the nexus test with reference to MS angles and channels as according to the appellant what was bought to the site were towers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee CENVAT credit on the premise that the towers erected result in immovable property, is erroneous and plainly contrary to Solid and Correct Engineering (supra). The towers that are received in CKD condition, are erected at site, subsequently, giving rise to a structure that remains, safe and stable (commercial reasons of use). The fact that in the intermediate stage, an immovable structure emerged, is of no consequence, in the facts of the present case. It is a settled principle of law that entitlement of CENVAT credit is to be determined at the time of receipt of the goods. If the goods that are received qualify as inputs or capital goods, the fact that they are later fixed/fastened to the earth for use would not make them a non-excisable commodity when received. The CESTAT failed to consider the fact in the event antennae and BTS are to be relocated, the assessee also has to relocate the tower and the pre-fabricated shelters, thereby, implying that the towers and the pre-fabricated shelters, are not immovable property. Therefore, the CESTAT erred in relying upon the decision of the Bharti Airtel (supra). (Emphasis supplied) 22. It is seen from the aforesaid judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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