Custom, Excise & Service Tax Tribunal
M/S Vodafone Essar South Limited vs Commissioner Of Central Excise & St, ... on 31 January, 2018
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 COURT NO. I Appeal No. ST/1907/2010-DB Date of Hearing/ Decision : 31.01.2018 [Arising out of Order-in-Original OIO-81-STC-CHD-I-2010 dated 18.06.2010 passed by the Commissioner Central Excise & ST, Chandigarh] M/s Vodafone Essar South Limited : Appellant vs. Commissioner of Central Excise & ST, Chandigarh : Respondent
Appearance:
Shri Amrinder Singh, Advocate for the Appellant(s) Shri Tarun Kumar, A.R. for the Respondent(s) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Final Order No. 60069/2018 Per : Ashok Jindal The appellant is in appeal against the impugned order wherein the Cenvat credit on towers, tower materials, shelters and prefabricated building have been denied to the appellant on the premise that these are neither input nor capital goods, in terms of Rule 2(k) (ii) / 2 (a) of Cenvat Credit Rules, 2004.
2. The ld. Counsel for the appellant submits that the Cenvat credit sought to be denied on the ground that these towers and prefabricated shelters have become immovable property therefore, they are neither goods nor capital goods hence, they are not entitled to avail Cenvat credit. The same proportion was taken by the Larger Bench of this Tribunal in the case of Vandana Global Limited vs. CCE, Raipur 2010 (253) ELT 440 (Tri.LB). The said decision of the Larger Bench of this Tribunal has been set-aside by the Hon'ble Chhattisgarh High Court in Tax Appeal No. 59 of 2011 vide order dated 13.09.2017, therefore, they are entitled to avail Cenvat credit.
3. Heard the parties. Considering the fact that on the items in question, the Larger Bench of this Tribunal in the case of Tower Vision India Pvt. Limited vs. CCE (Adj.), Delhi 2016 (42) STR 249 (Tri. LB) has held that the assessee is not entitled to avail Cenvat credit on towers, shelters, prefabricated structures or tower materials. Therefore, following the decision of the Larger Bench on the items in question, we hold that appellant is not entitled to avail Cenvat credit. Therefore, the Cenvat credit is disallowed.
4. Considering the fact that the issue whether the appellant is entitled to avail Cenvat credit or not was in dispute and there were divergent views, in that circumstance, no penalty is imposable on the appellant. Accordingly, penalty imposed on the appellant is set-aside.
With these terms, the appeal is disposed of.
(Order dictated and pronounced in the court) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) KL 2 Appeal No. ST/1907/2010-DB