The High Court · 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased direct the respondents not to take any coercive steps for the recovery of the alleged amount payable pending disposal of the above appezrl. Counsel for the Appellant in CEA No. 38 of 2019 Counsel for the Respondent in CEA No. 38 of 2019 and for the Appellant in CEA No. 153 ol 2O17 Counsel for the Respondent in CEA No. 153 of 2O17 : Sri Bommineni Vivekarranda representing Ms. Rajitha, Standing Counsel : Ms. Anushka Rastogi representing Sri Lakshmikumaran and Sridharan : Sri Dominic Fernanders, Standing Counsel for ,3BlC The Court delivered the following: COMMON JUDGMENT /, I I ! t I I THE HONOT]RABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI RAO CEA Nos.38 OF 2019 & CEA No.153 OF 2017 COMMON JT]DGMEN'I (per Hon'ble Sri Justice P.Sam Koshy) Heard Ms. Anushka Rastogi, learned counsel representing Mr. Lakshmikumaran and Sridharan, leamed counsel for the respondent in CEA No.38 of 2019 and appellant in CEA No' 153 of 2017, Mr. Bommineni Vivekananda, learned Junior Standing Counsel representing Ms. K.Raj itha, learned Senior Standing Counsel for the appellant in CEA No.38 of 2019 and Mr. Dominic Femandes, learned Senior Standing Counsel lor CBIC fbr the respondent in CEA No.l5 3 of 2017 . Perused the record

2. These are two appeals involving the same substantial question of [aw.

3. The two appellants in the instant appeals are Telecom Service Providers. The respondent in CEA No.38 of 2019 is M/s Bharti Airtel Ltd., and the appellant in CEA No. I 53 of 201 7 is M/s Idea Cellular Limited. \ 4 The question of law involved in these two apoeals is whether the Cenvat Credit on pre-fabricated buildings/sh e lters/pUF panel falling under chapter heading 9406, which were used for housing/ storage of generating sets and other components/eqrripmgnls/spares etc., is admissible as per Cenvat Credit Rules,2001. The question of law also was whether Cenvat Credit would br: admissible to channels and beams etc., used for the erection of toq,ers on which the transmission equipments were installed.

5. Today, when the matters are taken up for hear.ing, it has been brought to the notice of this Bench that an identical issue came up lbr hearing belore the Hon'ble Supreme Court in the case of M/s Bharti Airtel Ltd., vs. The Commissioner o1. Cenrral Excise, Pune and other batch of civil appeals arising out o1'diff'erent High Courls vide Civit Appeal Nos.10409-10410 of 2024 and barch of civil appeals, all of which stood decided vide j udgmenr dated

20.1I.2024. lt would be relevant at this juncture to refer to the question of law which fell for consideration before the Hon,ble Supreme Courl and the same is as under: 3 'The core issue involved in this set of appeals is whether the mobile service providers (MSPS) who pay excise duties on various items for sefting up their business more particularly for erection of mobile towers and peripherals like pre-fabricated buildings (PFBs) etc. can take the benefit of CENVAT Credit under the CENVAT Credit Rules, 2004 (hereinafter referred to as the "CENVAT Rules") for the purpose of payment of service tax on the output services rendered by them". It would also be relevant at this juncture to take note of the findings given by the Hon'ble Supreme Court as would be reflected as under: { I 'Having held that the tower and pre-fabricated buildings (PFBS) are 'goods" and not immovable property and since these goods are used for providing mobile telecommunication services, the inescapable conclusion is that they would also qualify as 'inputs" under Rule 2(k) for the purpose of credit benefits uMer the CENVAT Rules'. \ t

6. In the light of the aforesaid categorical hnding by the Hon'ble Supreme Court, we are of the considered opinion that the question of law involved in these two appeals also sland squarely covered in favour ofthe assessee and against the Revenue. In view of the same, the appeal frled by the Revenue i.e., CEA No.38 of 2019 stands rejected answering the question of law in favour of the 4 assessee and CEA No.153 of 2Ol7 which is an appeal by the assessee stands allowed in terms of the judgment passed by the Hon'ble Supreme Court as above. There shall be no order as to Consequently, miscellaneous petitions pending, if any, shall stand closed SD/. K. SRINIVASA RAO JOINT REGISTRAR (\, //TRUE COPY// i lr\ \ SECTION OFFICER \ I I I To, 1 2 J 4 5

7. The Customs, Central Excise and Service Tax Appellate Tribunal, Regional Bench, Hyderabad The Commissioner, Customs, Central Excise and Servir;e Tax, Hyderabad-ll, Basheerbagh, Hyderabad. The Customs, Excise and Service Tax Appellate Trib.rnal, South Regional Bench, Hyderabad The Commmissioner of Customs, Central Excise and Service Tax, Hyderabad-l I Commissionerate. One CC to Ms. Rajitha, Standing Counsel IOPUCI One CC to Sri Lakshmikumaran and Sridharan, Advocatr: [OPUC] One CC to Sri Dominic Fernandes, Standing Counsel for CBIC [OPUC] B. Two CD Copies VHigh Ig .,,<. .) rJ , -.9 ,,. \, 23 sEP m6 .':? i1 HIGH COURT DATED: 1410812025 COMMON JUDGMENT CEA.No.38 of 2019 & GEA.No.153 of 2017 REJECTING THE GEA.No.38 of 2019 & ALLOWING THE CEA.No.153 ot 2017 WITHOUT COSTS vll lu-