Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise & S. Tax, Kanpur vs M/S Malay Investment & Financial ... on 11 January, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
S.T. Appeal No.1015/10
Arising out of O/A No.245-ST/APPL/KNP/2010 dated 15.04.2010 passed by Commr. (Appeals) of Customs & Central Excise, Kanpur.
For approval and signature:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)
HONBLE MR. H. K. THAKUR, MEMBER (TECHNICAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? : No
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? : Yes
3. Whether His Lordship wishes to see the fair copy
of the Order? : Seen
4. Whether Order is to be circulated to the Departmental
Authorities? : Yes
Commr. of Central Excise & S. Tax, Kanpur
APPELLANT(S)
VERSUS
M/s Malay Investment & Financial Services (P) Ltd.
RESPONDENT (S)
APPEARANCE Shri Rajeev Ranjan, Joint.Commr. (D.R.) for the Department Shri Dharmendra Srivastav, C.A. for the Respondent (s) CORAM:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) HONBLE MR. H. K. THAKUR, MEMBER (TECHNICAL) DATE OF HEARING & PRONOUNCEMENT : 11. 01. 2016 ORDER NO.__________________________ Per Mr. H. K. Thakur :
This appeal has been filed by the Revenue against the Order-in-Appeal No. 245-ST/APPL/KNP/2010 dated 15.04.2010 passed by Commr. (Appeals) of Customs & Central Excise, Kanpur.
2. Shri Rajeev Ranjan, Joint Commissioner (A.R.) appearing on behalf of the Revenue argued that appellant was a sub-broker and before 01.06.2005 was directly raising bills/invoices to the investors and was also paying service tax for providing stock broker service. That SEBI vide Circular dated 12.05.2005 prohibited sub-brokers from doing business directly with investors and the power to directly issue bills/invoices to the investors was withdrawn. That the main broker directly issued bills/invoices to the investors and paid service tax. That the Respondent was given commission/remuneration by the main broker. Ld.A.R. further argued that the activity undertaken by the Respondent will be taxable under the category of Business Auxiliary Service (BAS) as commission Agents.
3. Shri Dharmentra Srivastava (C.A.) appearing on behalf of the Respondent argued that in the show-cause notice dated 5.3.2010, demand is proposed to be made against his client under Stock Brokers Service. That there is no whisper in the show-cause notice to alternatively demand duty under BAS. Ld.C.A. relied upon the case law in the case of CCE, Kanpur Vs. P. K.Khanddwal & Com. And Others [ 2016 (TIOL)-45-CESTAT-All] to argue that under similar facts, appeal filed by the Revenue on the same issue, was rejected .
4. Heard both sides and perused the case records. The issue involved in the present appeal filed by the Revenue is whether Respondent is required to pay service tax as stock broker after 01.06.2005, when the main broker, M/s UPSE Securities Ltd., Kanpur (M/s USL), has paid service tax and only paid brokerage/commission to the Respondent. No payments are received by the Respondent directly from the investors and Respondent can not be said to have provided any Stock Borkers Service to the investors. There is a categorical finding given by the first appellate authority that main broker M/s USL has paid service tax on the total brokerage received from the investors. The present proceedings are squarely covered by the relied upon case laws of CCE, Kanpur Vs. P. K.Khanddwal & Com. and Others (supra) which is based on Larger Bench case law of Vijay Sharma & Company Vs. CCE, Chandigarh [ 2010 (20) STR 309 (Tri.-LB)].
4.1 On the issue of charging of service tax under BAS from the respondent herein on the commissions received, we are of the considered opinion that the same cannot be allowed in these proceedings at this stage when the same was not a part of the show-cause notice and proceedings before the lower authorities.
5. In view of the above observations, appeal filed by the Revenue is rejected.
(Pronounced in the open Court)
Sd/ Sd/
(ANIL CHOUDHARY) (H. K. THAKUR)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
mm
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S.T. Appeal No.1015/10