By TIOL News Service

MUMBAI, AUG 18, 2016: THE appellant is seeking rectification of mistake in Final Order dated 22.08.2014 - 2014-TIOL-1768-CESTAT-MUM passed by the Tribunal, by which the appeal of the appellant was allowed with consequential relief. In the said Final Order, it was held that the appellant is not a "Cellular Phone Service Provider"/ "Telecom Operator”, and the CENVAT Credit of duty paid on 'Towers' and 'BTS Cabins' cannot be denied to them, as the towers and the cabins are "Passive Telecom Infrastructure "used by the appellant as inputs for providing output service namely "Business Auxiliary Service".

In fact, the appellant is neither aggrieved by finding recorded in the Final Order nor is it seeking review of the said Final Order but makes a limited submission that some of the submissions specifically argued by them are not reflected in the said final order; that they have been ignored and the appeal is allowed on other submissions.

They, therefore, pray that –

(i) that the consideration of the submissions on behalf of the Appellant as set out in para 3 of the instant Application, may please be incorporated in the Final Order NO. A/1368/14/CSTB/C-I dated 22-08-2014 - 2014-TIOL-1768-CESTAT-MUM passed by this Hon'ble Tribunal, and

(ii) for such other or further order/s as deemed fit and proper.

The AR opposed the application by inter alia submitting that only an error which is readily evident needs correction and that was not the case; that a Departmental appeal is now pending against the Final Order before the Bombay High Court and the law point can be taken before the High Court, if required, through a suitable application.

Following case laws were also cited - Deva Metal Powder Pvt. Ltd. 2007-TIOL-221-SC-CT, BSBK Pvt. Ltd. 2010-TIOL-646-CESTAT-DEL-LB, Cadchem Laboratories 2015-TIOL-2244-HC-P&H-CX, Baron International Ltd. 2004-TIOL-03-HC-MUM-CESTAT & Zenith Computers Ltd. 2014-TIOL-623-HC-MUM-ST.

The AR also added that since the Final order is already in favour of the applicant, precious judicial time should not be wasted on trivialities.

The Bench negatived the submissions made by the AR and also remarked that none of the decisions cited by the AR are applicable in the above peculiar facts of the instant case.

After narrating the facts involved, the CESTAT observed that it did not agree with the observations recorded in the Order-in-Original to the effect that – "… Towers/BTS rooms cannot be considered as excisable goods and no excise duty be charged/recovered."

The Bench justified its stand thus-

"6.5 … once at the end of the "Supplier"the Towers/BTS Cabins are assessed to Central Excise Duty by considering them as 'excisable goods' and the assessed Central Excise Duty has been collected, it is not open for the Central Excise authority at the end of the 'recipient' to question whether the goods are dutiable and excisable, for the purpose of denying cenvat credit of such duty collected by the department. Any subsequent determination of the issue as to whether or not such duty paid goods were 'excisable' or 'dutiable' can only be decided at the end of the 'Supplier' unit where the initial assessment had taken place and the Central Excise Duty was levied, assessed and collected. No loss is caused to the Revenue."

While arriving at the above conclusion, the Bench also relied on the following decisions:

+ MDS Switchgear Ltd. 2008-TIOL-245-SC-CX

+ Owen Bilts Ltd. v. CCE, Pune 1998 (101) ELT 642

+ CCE v. U.P. State Sugar Corporation Ltd. – 2013 (291) ELT 402

+ CCE v. Hylite Cables – 2007 (212) ELT 284

+ Treadsdirect Ltd vs. CCE, Calicut – 2011-TIOL-1845-CESTAT-BANG

+ CCE v. Nestle India Ltd. – 2011-TIOL-557-HC-MUM-CX

As for the arguments made by the AR thatthe Final Order passed by the Tribunal was erroneous, the CESTAT remarked - Even otherwise, in this application for rectification of mistake there is no scope and jurisdiction to sit in appeal over the Final Order.

The application for rectification is allowed with the above findings.

(See 2016-TIOL-2108-CESTAT-MUM)