Custom, Excise & Service Tax Tribunal
M/S I.S.E. Securities & Services Ltd vs Commissioner Of Service Tax, Mumbai-Ii on 20 September, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Application No. ST/S/1398/12 in Appeal No. ST/427/12 (Arising out of Order-in-Original No. 42-44/ST-II/WLH/2012 dated 29.3.2012. passed by the Commissioner of Service Tax, Mumbai-II). For approval and signature: Honble Shri S.S. Kang, Vice-President Honble Shri P.R. Chandrasekharan, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s I.S.E. Securities & Services Ltd. Appellant Vs. Commissioner of Service Tax, Mumbai-II Respondent Appearance: Shri George Joseph, C.A. for Appellant Shri S. Dewalwar, Addl. Commr. (A.R.) for Respondent CORAM: SHRI S.S. KANG, VICE-PRESIDENT SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) Date of Hearing: 20.09.2012 Date of Decision: 20.09.2012 ORDER NO. Per: Shri S.S. Kang, Vice-President Heard both sides.
2. Applicant filed this application for waiver of pre-deposit of Service Tax of Rs.1,04,75,937/-, interest and penalties.
3. Proceedings were initiated by issuing three show-cause notices on the ground that the applicants are provider of Stock Broker Services and certain charges are not added to the assessable value of the service as stock broker. The applicants replied to the show-cause notice and the adjudicating authority vide the impugned order confirmed the demand of Service Tax on the ground that they have provided Stock Exchange Services.
4. The contention of the applicant is that the adjudication order is beyond the scope of show-cause notice as the Stock Broker Service and Stock Exchange Service are two different services under the Finance Act, 1994.
5. We have gone through the show-cause notice as well as the adjudication order. In the show-cause notice, the demand is made on the ground that the applicants are registered under the stock brokers services failed to declare the value of these services in their Service Tax returns. The applicants had also failed to pay the Service Tax due on the value of such services.
6. The adjudicating authority confirmed the demand under the category of Stock Exchange Service. We find that as per the provisions of Section 65(105)(a) of the Finance Act, 1994, Stock Broker Service is any service provided or to be provided to any person by a stock broker in connection with the sale or purchase of securities listed in a recognized Stock Exchange.
7. Further, as per the definition of Stock Exchange Services under Section 65(105)(zzzzg) of the Finance Act, 1994 - any services provided or to be provided to any person, by a recognized stock exchange in relation to assisting, regulating or controlling the business of buying, selling or dealing in securities and includes services provided in relation to trading, processing, clearing and settlement of transactions in securities are taxable services.
8. As the show-cause notices were issued demanding duty as provider of Stock Broking Services, whereas the adjudicating authority has confirmed the demand as provider of Stock Exchange Service, which is a different and distinct service. In these circumstances, we find merit in the contention of the appellant that the impugned order is beyond the scope of show-cause notice.
9. In view of this, the impugned order is set aside after waiving the requirement of pre-deposit of dues and the appeal is allowed. Stay petition is also disposed of accordingly.
(Dictated and pronounced in open Court)
(P.R. Chandrasekharan) (S.S. Kang)
Member (Technical) Vice-President
Sinha
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