2009 (6) TMI 95 - AT - Service Tax

Credit telecommunication services - Respondents availed CENVAT credit on telephone service in respect of the mobile phones provided to and used by, their employees - held that denial of CENVAT credit on telephone service on the ground that the impugned phones were not installed in factory premises was not germane - hold that the respondents can claim CENVAT credit on telephone service in respect of the mobile phones used by their functionaries and employees

Summary

Issues:
- Availing CENVAT credit on telephone service for mobile phones provided to employees.
- Admissibility of CENVAT credit on mobile phone service for manufacturers.
- Requirement of mobile phones to be used in connection with business activity for claiming CENVAT credit.
- Burden of proof on the manufacturer regarding the use of mobile phones in business activities.

Analysis:
The judgment revolves around the issue of availing CENVAT credit on telephone service for mobile phones provided to employees. The appellant contended that such credit should only be admissible if the telephones are installed in the factory/business premises. However, the Tribunal noted that previous decisions consistently allowed CENVAT credit for mobile phone service to manufacturers of excisable goods. The Tribunal emphasized that the burden is on the manufacturer to prove that the mobile phones were used in connection with the business activity to claim CENVAT credit. The appellant failed to demonstrate that this burden was not met by the respondents, leading to the dismissal of the appeals.

Furthermore, the Tribunal referred to case law, including the decision of the Hon'ble Gujarat High Court in Commissioner v. Excel Crop Care Ltd., which highlighted that denying CENVAT credit based on the location of the phones was not relevant to the provisions. This decision supported the Tribunal's stance that the location of the phones did not disqualify the manufacturer from claiming CENVAT credit on telephone service for mobile phones used by their functionaries and employees during the relevant periods.

In conclusion, the Tribunal held that the respondents were entitled to claim CENVAT credit on telephone service for the mobile phones used by their employees. The appeals by the Revenue were dismissed based on the findings that the burden of proof regarding the use of mobile phones in business activities was satisfied by the respondents. The judgment reinforces the principle that CENVAT credit on mobile phone service is permissible for manufacturers, provided the phones are utilized in connection with business operations.