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TMI Blog2025 (1) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... t of irregularly availed Cenvat Credit of Rs. 1,70,18,594/-. 2. The issue, in brief, is that they were engaged, interalia, in installing mobile tower, pre-fabricated shelter in connection with providing telecommunication service. The Department felt that since mobile towers are immovable goods and hence it would not be entitled for any credit either as input or as capital good. 3. The Learned Advocate points out that the matter is no longer resintegra as in the case of M/s Bharti Airtel Ltd., Vs The Commissioner of Central Excise, Pune [2024 (11) TMI 1042 - SC], Hon'ble Supreme Court has finally held that mobile towers installed are not in the nature of immovable goods and has further held that all the inputs used for erection of mobile t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ketability, it is quite clearly evident that these items are not immovable but movable within the meaning of Section 3 of the Transfer of Property Act, read with Section 3 (36) of the General Clause Act. If we consider the nature of annexation of the tower to the earth, it is seen that the annexation is not for permanent annexation to the land or the building as the tower can be removed or relocated without causing damage to it. It is also to be noted that the attachment of the tower to the building or the land is not for the permanent enjoyment of the building or the land. Further, the tower is fixed to the land or building for enhancing the operational efficacy and proper functioning of the antenna which is fixed on the tower by mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d transmission of radio signals. Thus, there cannot be any doubt that a mobile tower can be treated to be an accessory of antenna and BTS. Accordingly, since in terms of subclause (iii) of Rule 2(a)(A), all components, spares and accessories of such capital goods falling under sub-clause (i) would also be treated as capital goods, a mobile tower can also be treated as "capital good". 11.11.12 We, therefore, agree with the conclusion arrived at by the Delhi High Court that towers and shelters (PFBs) support the BTS/antenna for effective transmission of mobile signals and thus enhance their efficiency and since these articles are components/accessories of BTS/antenna which are admittedly "capital goods" falling under Chapter 85 within sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2(a)(A)(iii) and since these are used for providing output service, i.e. mobile service, these can be considered to be "inputs" within the meaning of Rule 2(k) and CENVAT credit can be availed in respect of these goods for payment of service tax. The aforesaid definition clause under Rule 2(k) neither puts any condition on it nor any qualifying words have been added to the word "input", except to mean goods used for providing any output service. Hence, it would mean any "good" which is used as "input" for providing taxable output service. Thus, any item so long it qualifies as a "good" and is "used" for providing output service, would come within the purview of "input" under Rule 2(k) and excise duty paid on such items can be claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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