Service Tax on Towers and pre-fabricated buildings – Capital Goods or Inputs – CESTAT declined to follow its earlier orders and grant waiver of pre-deposit

IN THE HIGH COURT OF BOMBAY

Central Excise Appeal No. 116 of 2010

BHARATI TELE VENTURES LIMITED

Vs

COMMISSIONER OF CENTRAL EXCISE, PUNE- III

Dated: November 18, 2010

JUDGEMENT

P.C:

Explore the judgment on whether the tower with antenna qualifies as capital goods. Adjudicating pre-deposit directives under Cenvat Credit Rules.

1. Heard. Admit on the following substantial question of law.

“Whether in the facts and circumstances of the case, the Tribunal was justified in directing the appellants to deposit Rs.5 Crores under Section 35F of the Act?

2. The short question raised in this appeal is, whether the tower on which the antenna is mounted by the appellant constitutes capital goods for the purpose of Rule 3 of the Cenvat Credit Rules, 2004 and whether the Tribunal is justified in directing the appellant to make pre-deposit. Admittedly, in several similar appeals filed by the appellant the CESTAT has granted waiver of pre-deposit in all those appeals which are pending since July 2007.

3. In the present case, the CESTAT has declined to follow its earlier orders and grant complete waiver of pre-deposit because of the subsequent judgment of the Apex Court in the case of Maruti Suzuki Limited Vs. Commissioner of Central Excise reported in –  240 ELT 641 (S.C.) and a larger bench decision of the Tribunal in the case of Vandana Global Limited Vs. Commissioner of Central Excise reported in  253 ELT 440 (Del-LB).

4. Perusal of the aforesaid decisions clearly show that the questions raised therein are totally different from the questions raised in the present case. Whether construction of a tower on which antenna is mounted constitutes capital goods or not was not the question considered in those two cases. In these circumstances, without going into the merits of the case, in our opinion interest of justice would be met by directing the CESTAT to dispose off the appeal which is the subject matter of the present appeal along with other pending appeals without any pre-deposit as expeditiously as possible and preferably within a period of six months from today.

5. The appeal is disposed off in the above terms with no order as to costs.