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TMI Blog2009 (7) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... ption 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed CENVAT credit to the assessee in respect of some of the services after holding that these were used in or in relation to the manufacture of final products. In respect of other services the adjudicating authority held that the assessee failed to prove that the services were used in or in relation to the manufacture of their final products. The authority also noted the assessee's willingness to pay the amount of CENVAT credit of service tax on telephone bills which were not in their name. The adjudicating authority, in respect of all the services, held that CENVAT credit was not liable to be denied on the ground of limitation. The second show-cause notice proposed to deny CENVAT credit singularly on the ground that the services in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 (12) S.T.R. 436 (Guj.). In the first case, the telephone service received on mobile phones of the assessee, which were operated by their staff, was held to be 'input service' and accordingly service tax paid thereon was allowed. In that case, it was found that the mobile phones were operated by the staff in connection with the business of the company. In the second case, the Hon'ble High Court considered a similar issue and found that the records of the assessee did not show that the mobile phone services used by them through their employees was not relatable to the manufacture of final products. The learned SDR argues that, in the present case, the appellant has not discharged their burden of proof in respect of the services including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible to the assessee. However, the above 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. The learned counsel has argued that these services, being covered by the inclusive part of the definition of 'input service', are Cenvatable, inasmuch as the inclusive part of the definition is independent of its main part. No binding case law has been cited in support of this legal proposition. Therefore, I am of the considered view that the 'input service' covered by the second part of the definition should satisfy the essential conditions laid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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