LAWS(BOM)-2014-8-99

BHARTI AIRTEL LTD Vs. COMMISSIONER OF CENTRAL EXCISE

Decided On August 26, 2014
BHARTI AIRTEL LTD Appellant
V/S
COMMISSIONER OF CENTRAL EXCISE Respondents

JUDGEMENT

(1.) BOTH these appeals under Section 35 G of the Central Excise Act 1944 arise out of the common orders dated 6.1.2012 of the Customs, Excise and Service Tax Appellate Tribunal (Tribunal), West Zonal Bench at Mumbai ( for brevity 'the Tribunal') in Appeal nos.ST/49/2007 and ST/145/2009. The Appellant has raised the following substantial questions of law: -

(2.) THE appellant is engaged in providing cellular telephone services and is paying applicable service tax on the cellular telephone services. The appellant, inter alia, availed Cenvat credit on excise duty paid on towers parts and shelters/ prefabricated buildings purchased by them and alleged to be used for providing output service. The credit so availed was utilised for payment of service tax on output service viz. Cellular Mobile Service being provided by the appellant.

(3.) TO the show cause notice was enclosed Annexure "A", in which it was stated that the Central Excise Officers had developed an intelligence to the effect that the appellant has wrongly taken and utilised Cenvat Credit on certain goods which do not qualify as capital goods within the meaning of Credit Rules. It was stated that after verification of documents and records relating to Cenvat credit on account of capital goods for the period October, 2004 to September, 2005, it was observed that the credit availed by the appellant was not in accordance with the provisions of Credit Rules and same was in contravention of the Rules. The relevant Rule being Rule 2(a)(A) of the Credit Rules which defined "Capital goods". It was stated that while availing Cenvat credit in respect of any goods as "Capital goods" the requirement of Rule 2(a)(A) of the Credit Rules stipulates satisfaction of following two conditions: -