Disposed

M/S Idea Cellular Ltd. v. Commissioner of Customs, Central Excise and Service Tax

Telangana HC14 Aug 2025CEA/153/2017

Case brief

AI extract

What is this about?

Two telecom service provider appeals on admissibility of Cenvat Credit on pre-fabricated buildings and tower erection materials. Following a 2024 Supreme Court judgment holding towers and PFBs qualify as inputs for CENVAT credit, the court answered the question in favour of the assessee: Revenue's appeal rejected, assessee's appeal allowed without costs.

What did the court decide?

CEA No.38 of 2019 rejected; CEA No.153 of 2017 allowed in terms of Supreme Court judgment; no order as to costs; miscellaneous petitions closed.

M/S Idea Cellular Ltd. Vs Commissioner of Customs… — GST and Indirect Tax | Telangana HC (2025)

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[^348s 1

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE FOURTEENTH DAY OF AUGUST TWO THOUSAND AND TWENry FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI RAO

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GEA NOs: 38 OF 2019 & CEA No. 153 OF 2017

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CEA NO: 38 OF 20{9

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Appeal filed under Section 35 G of the Central Excise Act, 1944 against the order dated 01-01-2019 Final Order No A/30009i2019 in Appeal No. 5T/1004/2009 on the file of the Customs, Central Excise and Service Tax Appellate Tribunal, Regional Bench, Hyderabad, preferred against the order dated 29-09-2009 in Speaking Order C.No. 39/2009-5T on the file of the Commissioner, Customs, Central Excise and Service Tax, Hyderabad-ll, Basheerbagh, Hyderabad.

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Between:

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COMMISSIONER OF GST GURUGRAM, PLOT NO.36-37, SECTOR-32, GURGAON, HARYANA

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...APPELLANT/RESPONDENT

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AND

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M/s BHARTI AIRTEL LTD, Splendid Towers, 1-8-36414381445, S.P. Road, Begumpet, Hyderabad.

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..RESPONDENT/APPELLANT

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CEA NO: 153 OF 2017

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Appeal filed under section 35G of the Central Excise Act, 1994 as made applicable to Service Tax u/s 83 of the Finance Act, 1994 against the order dated 08-11-20 16 in Final Order No. A13152712016 in Appeal No.STi1015/2009 on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Regional Bench, Hyderabad, preferred against the order dated 30-09-2009 iri Original

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Order No. 40/2009-5T on the file of the Commmissioner r:f Customs, Central Excise and Service Tax, Hyderabad-ll Commissionerate.

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Between:

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M/s ldea Cellular Ltd, Khan Lateef Khan Estate, F ateh Maidan Road, Hyderabad-500 001.

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.,.APPELLANT

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AND

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Commissioner of Customs, Central Excise and Service Tax, Hyderabad-ll Commissionerate, 7th Floor, Kendriya Shulk Bhavan, L E.Stadlum Road, Basheerbagh, Hyderabad-500 004.

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...RESPONDENT

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l.A. NO: 1 OF 2017(CEAMP. NO: 208 0F 20171

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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.

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Counsel for the Appellant in CEA No. 38 of 2019 : Sri Bommineni Vivekarranda representing Ms. Rajitha, Standing Counsel

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Counsel for the Respondent in CEA No. 38 of 2019 and for the Appellant in CEA No. 153 ol 2O17 : Ms. Anushka Rastogi representing Sri Lakshmikumaran and Sridharan Counsel for the Respondent in CEA No. 153 of 2O17 : Sri Dominic Fernanders, Standing Counsel for^,3BlC

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The Court delivered the following: COMMON JUDGMENT

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II ! t I I

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THE HONOT]RABLE^{SRI JUSTICEP.SAMKOSHY} AND THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI^RAO

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CEA Nos.38 OF 2019 &^{CEA No.153 OF 2017}

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COMMON JT]DGMEN'I (per Hon'ble Sri Justice P.Sam^Koshy)

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Heard Ms. Anushka Rastogi,^{learned counselrepresenting} Mr. Lakshmikumaran and^{Sridharan,leamed counsel for the} respondent in CEA No.38^{of 2019 and appellantin CEA No' 153 of} 2017, Mr. Bommineni^{Vivekananda, learnedJunior Standing} Counsel representing Ms.^{K.Raj itha, learned Senior Standing} Counsel for the appellant^{in CEANo.38 of 2019 and Mr. Dominic} Femandes, learned Senior^{Standing Counsellor CBIC fbr the} respondent in CEA No.l5^{3 of 2017 . Perused the record}

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These are two appeals^{involving the samesubstantial} question of [aw.

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The two appellants in^{the instantappeals are Telecom} Service Providers. The^{respondentin CEA No.38 of 2019 is} M/s Bharti Airtel Ltd., and the^{appellantin CEA No. I 53 of 201 7 is} M/s Idea Cellular Limited.

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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.

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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:

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{ I

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'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".

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It would also be relevant at this^juncture to take note of the findings

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given by the Hon'ble Supreme Court as would be reflected as

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under:

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'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'.

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\ t

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In the light of the aforesaid categorical hnding by the

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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

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