2013 (11) TMI 768

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..... otes issued by M/s. Arvind V. Joshi & Company, a Custom House Agent (CHA) for the service tax paid by CHA, with respect to the service rendered by Kandla Port Trust and Kandla Dock Labour Board, to the appelalnt. 2. Shri V.M. Doiphode, learned advocate appearing on behalf of the appellant made us go through one of the representative debit notes issued by CHA and the copy of the duty paying voucher issued by Kandla Dock Labour Board and Kandla Port Trust (KDLB & KPT) to the CHA. He argued that all the activities done by the said CHA are carried out on appellants behalf and the credit has been correctly availed by the appellant as the CHA has only acted as an agent of the appellant. Shri Doiphode (Advocate) relied upon the following case la .....

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..... e tax paid by him to the KDLB & KPT and there is no provision in the Service Tax Credit Rules, 2002 to Cenvat Credit Rules, 2004 to take such credit. (iv) That there is no contract or evidence on record that the said CHA was acting as an agent of the appellant. (v) That as per Rule 5(3) of the Service Tax Credit Rules, 2002 and Rule 9(5) of the Cenvat Credit Rules, 2004 the burden of proof regarding payment of service tax and admissibility of cenvat credit lies upon the person claiming such credit. (vi) That the said CHA has not raised any bill/ debit notes showing any service tax paid by him in respect of the work executed by the CHA for the appellant. (vii) That type of debit note available with the appellant is not a credit taking do .....

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..... ent of the appellant. A cenvat credit case can be taken only with respect to the services availed by the service recipient and the document indicating duty payment is in appellant's name. In the debit note, relied upon by the appellant, there is no mention of the services being provided by the CHA to the appellant. Appellant has not directly availed the services from Kandla Dock Labour Board and Kandla Port Trust, therefore, appellant is not eligible to the service tax credit paid by the CHA to the Kandla Dock Labour Board and Kandla Port Trust as there is also no evidence that the CHA was acting as an agent of the appellant. The provisions regarding taking of cenvat credit under Rule 5(3) of the Service Tax Credit Rules, 2002 and Rule 9(5) .....

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