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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/Case Law/2014-15/2176

Whether credit available on angles, channels used in the construction of towers for transmission of signals by mobile company ?

Case:-M/s AIRCEL CELLULAR LTD Vs COMMISSIONER OF SERVICE TAX, CHENNAI
 
Citation:-2014-TIOL-570-CESTAT-MAD
 
Brief facts:-The applicants are engaged in the business of providing “Mobile Telephone Services”. They set up communication towers and base stations for transmission of signals. The issue involved in the appeals filed is whether Cenvat credit for angles, channels etc., used in the construction, erection, and installation of towers, for shelters and for pre-fabricated structures can be taken considering these goods as ‘capital goods' within the meaning of Rule 2(a) or as inputs within the meaning of Rule 2(k) of Cenvat Credit Rules, 2004. The period of dispute in the case of Air Cell Cellular Limited is Mar.' 09 to Dec.' 10 and the credit amount denied by impugned order, adjudicating two SCNs, is Rs. 2,15,62,637/-. In the case of M/s. Dishnet Wireless Ltd., the period involved in the impugned order, adjudicating two SCNs, is Mar.' 09 to Dec.' 10 and the amount involved is Rs.34,26,95,835/-. Further, there are fines and penalties involved. Presently, stay petition for waiver of pre-deposit of dues for admission of appeal is being heard.
 
Appellant’s contentions:-This issue has been a contentious issue and very many appellants have been before the Tribunal and obtained waiver of pre-deposit of dues for admission of appeals on identical issue. In one appeal finally disposed of by the Tribunal in Bharati Airtel Ltd., and Others Vs CST reported in 2013 (29) S.T.R. 401 (Tri.-Mum.) = 2012-TIOL-209-CESTAT-MUM, the Tribunal disallowed the credit. Against this, the appellants went in appeal to Bombay High Court and Bombay High Court stayed the order vide order dated 28-03-2012 in Central Excise Appeal (L) No. 35 of 2012 and no deposit could be collected so far. Subsequent to the said order of the Tribunal, the Bombay Bench of the Tribunal in the case of M/s. Essar Telecom Infrastructure Pvt. Ltd. Vs Commissioner of Service Tax, Mumbai – I vide Order No. S/790/2013/CSTB/C-1 dated 15.05.2013 directed pre-deposit of part of the amount confirmed against that party. This order was also stayed by the Bombay High Court vide order dated 02.07.2013 in Appeal No. C/88/2013 along with orders in Central Excise Appeal No. 73/2012 and 119 of 2012 filed by M/s. Bharati Airtel Ltd., before Bombay High Court. Thus, the position is that no part of credit taken by any assessee similarly placed and who has come before the Tribunal or Courts has been recovered so far.
 
Respondent’s contentions:-The learned Authorized Representative places reliance in the case of Maruti Suzuki Ltd reported in 2009 (240) E.L.T.641 (S.C.) = 2009-TIOL-94-SC-CX, Saraswati Sugar Mills Vs 2011 (270) E.L.T. 465 (S.C.) = 2011-TIOL-73-SC-CX and Vandana Global reported in 2010 (253) E.L.T. 440 (Tri.-LB) = 2010-TIOL-624-CESTAT-DEL-LBand argues that pre-deposit should be ordered. Thedecisions referred to by the learned Authorised Representative for Revenue is in respect ofmanufacture of excisable goods and not relating to output services. The degree of nexus thatcan be established varies in respect of inputs or capital goods vis-à-vis tangible excisableproduct as compared such goods vis-à-vis., intangible output service. Further, the decision ofthe Hon Apex Court in the case of Maruti Suzuki Ltd. (Supra) has been doubted by anotherBench of the Hon. Apex Court and the matter stands referred to a larger bench of the ApexCourt in the case of Ramala Sahkari Chini Mills Ltd. Vs CCE, Meerut – 2010 (260) ELT 321 (SC) = 2010-TIOL-102-SC-CX.
 
Reasoning of judgment:- The Hon’ble judgesnoted that as on date no other company providing similar services has been made to pre deposit any money on this issue for hearing their appeal. Therefore, they considered it proper to maintain parity among the various parties involved on the same issue. Hence, they order waiver of the requirement of pre-deposit of dues arising from the impugned orders for admission of the appeals and stay collection of such dues during the pendency of the appeals.
 
Decision:- The stay order granted.
 
Comment:- The analogy of the case is that in the light of various other decisions on the same issue and where no other parties were ordered to deposit any money, in this case also, following the same, the stay application was allowed on the issue of admissibility of cenvat on angles and channels without insisting any pre-deposit.
 
Prepared by : Monika Tak

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