Commissioner of Central Goods And Service Tax Vs Bharti Hexacom Limited
Date: March 6, 2025
Subject Matter
Towers erected by telecommunication company and pre-fabricated buildings are not immovable properties, are covered under the definition of capital goods and qualify for ITC
Summary
The appeal addresses a dispute related to the CENVAT credit claimed by the respondent company, which provided telecommunication services from September 1, 2004, to March 1, 2006. The core issue arose when the adjudicating officer imposed a demand for CENVAT credit related to excise duty on mobile towers and associated materials, citing an extended period of limitation. The Central Excise Service Tax Appellate Tribunal (CESTAT) ultimately ruled in favor of the respondent company, stating that the matter involved conflicting decisions from different High Courts, which could not justify the assertion of concealment warranting the extended period of limitation. As the Supreme Court had determined that mobile towers are classified as capital goods, the initial controversy was resolved in favor of the respondent, rendering the demand for the extended limitation period moot. The appeal against this tribunal decision was ultimately dismissed as infructuous.
FULL TEXT OF THE JUDGMENT/ORDER OF RAJASTHAN HIGH COURT
1. This appeal is filed against order dated 12.06.2018 passed by Central Excise Service Tax Appellate Tribunal (for short ‘the tribunal’).
2. The brief facts are that the respondent-company is engaged in providing telecommunication services for the period 01.09.2004 to 01.03.2006. The dispute arose with regard to CENVAT credit availed by the respondent company of the excise duty paid on mobile towers and tower material treating it to be input. The adjudicating officer invoking the extended period of limitation created a demand vide order dated 12.03.2015. The assessee respondent succeeded before the tribunal and hence the present appeal.
3. The tribunal held that there were divergent views of the High Courts, hence, it cannot be held to be concealment for invoking the extended period of limitation.
4. The appeal was admitted on 22.01.2019 on following substantial questions of law:-
“(i) Whether the Ld. CESTAT was right in law in setting aside the demand for the extended period holding that the issue of admissibility of Cenvat Credit was in dispute for a considerable period of time and there were conflicting decisions on the issue whereas during the impugned period there was no dispute regarding inadmissibility of Credit on mobile tower and tower materials?
(ii) Whether the ld. CESTAT is correct in setting aside the demand for the extended period ignoring the fact that the details of Cenvat Credit availed were never disclosed by the assessee to the department.”
5. On the issue involved, there were contrary views of Bombay High Court and Delhi High Court. The issue is no longer res integra and is decided by the decision of Supreme Court in Bharti Airtel Limited vs. Commissioner of Central Excise reported in (2024) 132 GSTR 404 wherein it is held that the towers erected by telecommunication company and pre-fabricated buildings were not immovable properties, are covered under the definition of capital goods and qualified for input. Since the controversy on merits has been decided in favour of respondent and against the department the question of invoking extended period of limitation has been infructuous.
6. The appeal is dismissed as infructuous.