Vodafone Cellular Limited Vs The Commissioner of GST & Central Excise (CESTAT Chennai)
Credit of inputs, capital goods and services used in fabrication, erection, installation of towers and shelter is admissible in law – invocation of extended period not possible in respect of subsequent show cause notice.
Facts-
Brief issue involved in the matter is that whether the credit on inputs and capital goods / services used in fabrication, erection, installation of towers and shelters is admissible or not. Further, issue also involves that whether extended period can be invoked in the present matter.
Conclusion-
We are of the considered opinion that credit, of inputs / capital goods and services utilized in fabrication, erection, installation of towers and shelters by the appellants, is admissible to them.
It is fact that the appellants are regular assessees who have been filing ST-3 Returns, the appellants have been issued show cause notices dated 22.09.2009 and 08.10.2010. This being the case, it is not possible to invoke extended period by alleging suppression of fact with an intent to evade payment of duty in respect of subsequent show cause notices.
Note –
Where credit availment is questioned, the onus of identifying the service and the credit irregularly availed, if any, by the appellants is squarely on the department. Service wise break up of duty on credit is to be given.
Where assessee has been issued SCNs in the past for the issue, it is not possible to invoke extended period by alleging suppression of fact with an intent to evade payment of duty in respect of subsequent show cause notices.
FULL TEXT OF THE CESTAT CHENNAI ORDER
The appellants are reputed providers of cellular mobile telephone services to their subscribers, taxable under the category “Telecommunication services”. The appellants assailed, vide this appeal No. ST/42404/2013-DB,impugned the Order-in-Original No. 09/2013-Commissioner dated 31.07.2013, which was a culmination of the proceedings initiated vide three different Show Cause Notices, seeking to disallow the CENVAT Credit on various inputs and input services. The disputed credit was mainly pertaining to capital goods and input services used in the fabrication. Erection and commissioning of towers and shelters for base units and credit availed on other services. Whereas, a total amount of demand was Rs. 97,76,70,042/-, the adjudicating authority confirmed an amount of Rs.80, 93, 75,263. Details of Show Cause Notices are as under.
