Custom, Excise & Service Tax Tribunal
Delhi I vs Bharat Sanchar Nigam Ltd on 2 May, 2024
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
New Delhi
PRINCIPAL BENCH - COURT NO. 1
Service Tax Appeal No. 51095 of 2018
[Arising out of Order-in-Original No. 09-11/SS/PR.COMMR/CGST/DSC/2017-18
dated 15.01.2018 passed by the Principal Commissioner of Central Goods and
Service Tax, Delhi South, New Delhi]
Commissioner of Central Excise, : Appellant
Customs and Central Goods and
Service Tax
2nd & 3rd Floor,
Plot No. 2B, EIL Annexee Building Bhikaji
Cama Place, New Delhi-110066
Vs
Bharat Sanchar Nigam Limited : Respondent
Room No. 104, First Floor, Janpath, New Delhi-110001 APPEARANCE:
Ms. Jaya Kumari, Authorized Representative for the Appellant None for the Respondent CORAM :
HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) FINAL ORDER No.55732/2024 Date of Hearing:02.05.2024 Date of Decision:02.05.2024 JUSTICE DILIP GUPTA The Department has filed this appeal to assail the order dated 15.01.2018 passed by the Principal Commissioner of Central Goods and Service Tax, Delhi South Commissionerate1 by which the demands proposed in three show cause notices dated 19.08.2013, 21.05.2014 and 23.04.2015 have been dropped.
1. the Principal Commissioner 2 Service Tax Appeal No. 51095 of 2018
2. The show cause notices proposed to deny CENVAT credit to the respondent M/s Bharat Sanchar Nigam Limited2 for the reason that the entire space segment services provided by M/s Antrix Corporation Limited3 had no nexus or application in the provision of services of interconnected usage provided by BSNL and the invoices raised were not even addressed to BSNL.
3. The Principal Commissioner has, after detailed examination of the provision of rule 2(l) of the CENVAT Credit Rules, 20044 as also the invoices and the input services, observed that the space segment/transponders services being availed by BSNL undoubtedly have a co-relation with the output services i.e. inter connected usage services rendered by BSNL. The Principal Commissioner, therefore, held that BSNL would be eligible to avail CENVAT credit of the service tax paid by BSNL on such space segment/transponders services.
4. Ms. Jaya Kumari, learned authorized representative appearing for the Department submitted that in view of the judgement of the Karnataka High Court in Antrix Corporation Limited versus Assistant Commissioner of Commercial Taxes, Bangalore5, BSNL would not be entitled to avail CENVAT credit for the reason that the transaction would amount to a deemed sale under the provisions of the Karnataka Value Added Tax Act, 2003.
5. No one has appeared on behalf of the respondent even though notices have been served.
6. It is not possible to accept the contention advanced by the learned authorized representative for the Department. This issue of
2. BSNL
3. Antrix Corporation 4 Cenvat Rules 5 2016 (337) ELT 530 (Kar.) 3 Service Tax Appeal No. 51095 of 2018 deemed sale was not raised by the Department in the three show cause notices that were issued to the appellant in 2013, 2014 and 2015 though the judgement of the Karnataka High Court was pronounced on 06.02.2010. Only those grounds raised by the Department for denying CENVAT credit to BSNL can be examined which were raised in the show cause notices. A ground not taken in the show cause notice cannot be made the basis to judge the validity of the impugned order.
7. Learned authorized representative has not raised any other ground to challenge the impugned order.
8. Such being the position, there is no reason to interfere with the impugned order dated 15.01.2018 passed by the Principal Commissioner. The appeal is accordingly, dismissed.
(Order dictated and pronounced in the open Court) (JUSTICE DILIP GUPTA) PRESIDENT (HEMAMBIKA R. PRIYA) MEMBER (TECHNICAL) G.Y.