Case Law Details
Commissioner of CGST & Central Excise Vs Reliance Jio Infocomm Ltd. (Bombay High Court)
SEO Title: Revenue Appeal on CENVAT Credit Dismissed as Withdrawn Following SC Ruling: Bombay HC
The Bombay High Court considered the Revenue’s appeal against the CESTAT order dated 18.04.2022 concerning the assessee’s entitlement to CENVAT credit on towers, doors, racks, fall arrestor systems, insulation material and other items, refund of reversed CENVAT credit, and related issues.
The Revenue had raised questions regarding the admissibility of CENVAT credit under Rules 2(k) and 2(l) of the CENVAT Credit Rules, 2004, entitlement to refund of credit reversed under protest, the Tribunal’s distinction of earlier Bombay High Court judgments, and whether telecom towers constituted immovable property.
During the hearing, counsel for the Revenue submitted that although the Bombay High Court had earlier taken a view in favour of the Revenue, the Supreme Court in Bharat Airtel Ltd. Vs. Commissioner of Central Excise, Pune, (2024) 19 SCC 1 had decided the issue against the Revenue and in favour of the assessee. On instructions, the Revenue sought to withdraw the appeal.
The High Court dismissed the appeal as withdrawn. No order as to costs was passed.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. The above Appeal is filed by the Revenue challenging the order dated 18th April 2022 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).
2. According to the Revenue, the impugned order gives rise to the following substantial questions of law:-
“A. Whether the respondent assessee is justified in availing CENVAT Credit of central excise duty paid on towers, doors, racks, fall arrestor system, insulation material etc. as inputs and/or capital goods as defined in rules 2(k) and 2(1) of the Cenvat Credit Rules, 2004 during the period from March 2014 to June 2017 for payment of service tax on the telecommunication services provided by the assessee?
B. Whether the CESTAT was right in holding that the assessee is entitled for refund of the Cenvat Credit which was reversed by it allegedly under protest on 29.06.2017, 21.09.2017 and 14.10.2017, pending adjudication of Show Cause Notice dated 12.03.2019 issued under Rule 14 of the CENVAT Credit Rules, 2004?
C. Whether the Tribunal is right in distinguishing the judgments of Hon’ble Bombay High Court in the case of Bharti Airtel Vs. CCE (2014-TIOL-1452-HC -MUM-ST) and in the case of Vodafone India Ltd. Vs CCE (2015-TIOL-2098-HC-MUM-ST), wherein this Hon’ble Court had taken view in favor of revenue in similar facts and circumstances of the case?
D. Whether in the facts and circumstances of the case, the CESTAT was justified in holding that the towers are not immoveable property?”
3. Mr. Mishra submitted that initially this Court had taken a view in favour of the Revenue that the Assessee who was setting up the mobile tower was not entitled to CENVAT credit. A contrary view was taken by the Delhi High Court. All these matters thereafter went to the Hon’ble Supreme Court, and the Hon’ble Supreme Court, in the case of Bharat Airtel Ltd. Vs. Commissioner of Central Excise, Pune, (2024) 19 SCC 1 has held against the Revenue and in favour of the Respondent Assessee. Mr. Mishra, therefore, submitted that in view of the decision of the Hon’ble Supreme Court, he has instructions to withdraw the above Appeal.
4. In view of the aforesaid statement, the above Appeal is dismissed as withdrawn. However, there shall be no order as to costs.
5. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
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