ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal No. 108/2006-C.E. dated 28-3-2006 confirming the Order-in-Original No. 08/2005-S.T. dated 15-12-2005 denying the Cenvat credit in respect of Service tax paid on Mobile Phones provided to Officers of the Company.
The learned Consultant submits that the Board has reconsidered the issue affd by Circular No. 97/8/2007, dated 23-8-2007, as in para 8.3, has taken a view that w.e.f. 10-9-2004 credit of service tax paid in respect of mobile telephone service is admissible, provided the mobile phone is used for providing output service or used in or in relation to manufacture of finished goods. He relies on the ruling of the Tribunal in Excel Crop Care Limited v. CCE, Ahmedabad 2007 (7) S.T.R. 451 (Tribunal) : 2007 (81) RLT 566 (CESTAT-Ah’bad.) wherein mobile phones used by employees and officers of a Company and tax paid thereon has been held to be admissible as Cenvat credit. Likewise, he relies on Indian Rayon & Industries Ltd. v. CCE, Bhavnagar 2006 (4) S.T.R. 79 (Tri.-Mumbai) wherein also, in a similar circumstance, Service tax paid on mobile phones, which have been used for output service and manufacture has been held to be eligible for the Cenvat credit.
2. The learned JDR submits that the matter has to go back to the original authority to verify as to whether the mobile phones had been used for providing output service or used in or in relation to manufacture of finished goods as noted in the cited Board’s order. He submits that no such evidence was placed and as noted by the Commissioner. Therefore, the matter has to be sent back for verification.
3. On a careful consideration, 1 notice that the Commissioner has noted in the order that the assessee did nor produce any proof to establish that the mobile phones were used for providing output service or used in or in relation to manufacture of finished goods. I notice that the cited judgment has already taken a view that mobile phones used by employees and officers of company and tax paid was not is (sic) admissible as Cenvat credit. However, the matter has to be verified by the authorities below before granting Cenvat credit, in terms of the Board’s Circular and cited judgment. Therefore, I remand the matter to the original authority to re-consider the claim in respect of the Board’s Circular and the citations and grant the Cenvat credit, if eligible, as per law. The matter should be re-adjudicated within a period of four months from today.
(Pronounced and dictated in open Court)