TMI Blog2009 (10) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... J) REPRESENTED BY : Shri S. Narayanan, Advocate, for the Appellant. Shri N.A. Sayed, JDR, for the Respondent. [Order]. - The lower authorities have denied Cenvat credit to the extent of Rs. 34,223/- to the appellant in respect of mobile phone service for the period 4-1-2006 to 31-1-2007 and have also imposed on them equal amount of penalty. Hence, this appeal of the assessee. 2.After examining the records and hearing both sides, I find that the appellant-company supplied mobile phones to its employees and paid the phone bills for the above period. The impugned demand is based on such payments. The lower authorities have held that there is no nexus between the use of the mobile phones and the manufacture and/or clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the adjudicating authority. It is also pointed out that the above letter was submitted to the Superintendent after the show-cause notice was issued and hence the same would not advance the assessee's case any better. The DR has also submitted that the Board's circular dated 23-8-2007 was upheld by a High Court and that judicial authorities have, by and large, given effect to it by holding that the condition laid down in the circular had to be complied with by any person claiming Cenvat credit on telephone service (mobile phone service included) as an input service. 4. After giving careful consideration to the submissions, I agree that the requisite evidence was not adduced before the adjudicating authority by the assessee. Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. Therefore, it is incumbent on a claimant to show that the mobile phones in question were used in or in relation to the manufacture or clearance of finished goods, whether directly or indirectly. This burden of proof is inescapable as rightly held by this Tribunal in many of the cases cited by the appellant themselves. As rightly pointed out by the lower authorities, the assessee failed to discharge this burden of proof. In this scenario, I am inclined to give them a reasonable opportunity by way of remand of this case to the original authority. 5. In the result, the orders of the lower authority are set aside and this appeal is allowed by way of remand, with a direction to the original authority to adjudicate the dispute afre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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