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2009 (7) TMI 259 - CESTAT, MUMBAIDenial of CENVAT credit - mobile phones were procured by the company and supplied to some of their functionaries/employees and that mobile phone bills were paid by the company. In this circumstance, there is a presumption that the mobile phones were meant to be used in connection with the business of the company. This presumption, of course, is rebuttable. - As this presumption is in favour of the assessee, the rebuttal has to come from the Revenue. – In this case, there is nothing in the impugned order to show that this presumption was successfully rebutted. – Presumption is not available to other services and, therefore, the burden of proof is on the assessee. The appellant has not adduced evidence to establish that those services were, in fact, used in or in relation to the manufacture of the final products – credit not admissible except on mobile phone service - in so far as telephone service is concerned, there is no dispute inasmuch as the telephone bills were not in the name of the assessee and the amount of CENVAT credit was undertaken to be paid - According to this sub-rule (2) of Rule 15, irregular availment of CENVAT credit by way of fraud, collusion, suppression/mis-statement of facts or contravention of rules with intention to evade payment of duty would attract a penalty. - None of these ingredients was alleged in any of the show-cause notices and none was found by any of the lower authorities. Therefore, the penalty imposed on the assessee cannot be sustained
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