S. S. GARG :

These four appeals, i.e. ST/60669/2018 & ST/60670/2018 filed by the Assessee and ST/60865/2018 & ST/60866/2018 filed by the Revenue, are directed against two impugned OIOs, both dated 21.02.2018, passed by the Commissioner of CGST, Rohtak. All four appeals are taken up together for discussion and disposal by this common order. Details of appeals are as under in a tabular form:

2. Briefly stated facts of the present case are that the Assessees, M/s Indus Towers Ltd, are engaged in providing passive infrastructure support and related operation and maintenance services to various telecommunication operators on a shared basis in terms of a master service agreement. During the relevant period, the Assessees procured various inputs, capital goods and input services, and availed CENVAT Credit on capital goods, inputs and input services under Cenvat Credit Rules, 2004. Audit of the Assessees’ records was conducted on 19.02.2009 & 20.02.2009 wherein it was observed that the Assessees had wrongly availed CENVAT Credit in respect of capital goods, inputs and input services. On this allegation, multiple show cause notices were issued to the Assessees proposing to deny CENVAT Credit on such capital goods, inputs and input services. The said show cause notices were adjudicated by the Adjudicating Authority vide two OIOs, both dated 21.02.2018 vide which certain demands were upheld and certain demands were dropped. To the extent that demands were confirmed against the Assessees in OIOs, the Assessees have preferred two appeals viz. ST/60669/2018 & ST/60670/2018 and to the extent of demands dropped in OIOs, the Revenue has also preferred two appeal viz. ST/60865/2018 & ST/60866/2018 before us.

3. Heard both parties and perused the material on record.

4. The learned Counsel appearing for the Assessees submits that the impugned OIOs are not sustainable in law as the same have been passed without properly appreciating the facts & the law and the binding judicial precedents on identical issue.

4.1 The learned Counsel further submits that for setting up passive infrastructure facility, the Assessees procure certain ‘inputs’ such as tower, tower’s parts etc; the Assessees also use green shelter, pre- fabricated shelter, DG fans etc; and these items fall under Chapter 85 of the First Schedule to Central Excise Tariff Act, 1985 and accordingly qualify as ‘capital goods’ in terms of Rule 2(a) of the Cenvat Credit Rules. She further submits that even if, the Revenue asserts that certain items do not qualify as ‘capital goods, then the same nevertheless qualify as ‘inputs’ under Rule 2(k) of the Cenvat Credit Rules which expressly provides that all goods used for providing output services shall qualify as inputs. She further submits that cellular mobile operators fix their antenna, BTS and other active equipment on such passive infrastructure in order to provide telecommunication services; accordingly, said inputs and capital goods are integrally used for providing output services and therefore, the Assessees are entitled to avail CENVAT Credit. She further submits that the issue of admissibility of CENVAT Credit on the inputs and capital goods is no more res integra and has already been settled by the Hon’ble Apex Court in favour of the Assessees in the case of M/s Bharti Airtel Ltd vs. CCE, Pune [2024 (11) TMI 1042 - SC], wherein the Hon’ble Supreme Court has held that towers and pre- fabricated buildings do not constitute “immovable property” but are “goods” within the meaning of Cenvat Credit Rules. The Hon’ble Supreme Court has also observed that such telecom towers and pre- fabricated shelters are not permanently embedded in the earth but are merely bolted to the ground for ensuring stability and can be dismantled, relocated and reassembled without substantial damage. The Hon’ble Supreme Court has also held that although towers and shelters are not themselves devices for transmission or receptio