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2018 (2) TMI 569 - AT - Service TaxLiability of service tax - various charges viz., NSE/BSE transaction charges, SEBI turnover fees, Stamp duty, Depository/Demat charges and Security Transaction charges, shown separately in the respective invoices - whether the appellants-stock brokers are required to include NSE/BSE transaction charges, SEBI turnover fees, Stamp duty, Depository/Demat charges and Security Transaction charges in the value of brokerage and commission charges recovered from their customers/clients? Held that - similar issue decided in the case of LSE Securities Ltd. Versus CCE 2012 (6) TMI 364 - CESTAT, New Delhi , where it was held that the charges realized by appellants were not being of commission or brokerage are not taxable and shall not form part of gross value of taxable service. The allegation of the department that the demat charges collected by the brokers are banking and financial service, hence taxable, also devoid of merit in as much such charges are collected by the Appellant and paid to the depository participants viz. CDSL/NSDL who are authorised to levy such charges under the Depositories Act, 1996. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Inclusion of NSE/BSE transaction charges, SEBI turnover fees, Stamp duty, Depository/Demat charges, and Security Transaction charges in the value of brokerage and commission charges. 2. Whether these charges are taxable under the category of "Banking and Financial Services." 3. Limitation period for issuing the demand. Detailed Analysis: Issue 1: Inclusion of Various Charges in Brokerage and Commission Charges The appellants, who are stock brokers, argued that charges such as NSE/BSE transaction charges, SEBI turnover fees, Stamp duty, Depository/Demat charges, and Security Transaction charges should not be included in the taxable value of brokerage and commission charges. They contended that these charges are collected separately as per statutory regulations and are not retained by them but deposited with the respective authorities. The Tribunal referenced the case of M/s LSE Securities Ltd and M/s Consortium Securities Pvt Ltd, where it was established that such charges, when collected separately and not retained by the stock brokers, do not form part of the taxable value of brokerage and commission charges. The Tribunal noted that Section 67 of the Finance Act, which deals with the valuation of taxable services, clearly states that only the commission or brokerage charged by the broker should be considered for taxation. The Tribunal emphasized that there is no implied power to tax, and any taxation must be explicitly stated in the law. Issue 2: Taxability under "Banking and Financial Services" The appellants also argued that the Demat charges collected from their customers and paid to depository participants like CDSL or NSDL should not be considered as part of "Banking and Financial Services." They maintained that they are not providing depository participant services themselves but are merely acting as intermediaries. The Tribunal agreed with this argument, stating that the Demat charges are levied by the depository participants as per the Depositories Act, 1996, and are not part of the stock brokers' services. Therefore, these charges cannot be included in the taxable value under "Banking and Financial Services." Issue 3: Limitation Period for Issuing the Demand The appellants argued that the demand was barred by limitation as they had been regularly filing returns and reflecting the transaction charges separately in their invoices. They contended that there was no suppression of facts or misdeclaration on their part. The Tribunal did not explicitly address the limitation issue in the detailed analysis but implicitly supported the appellants' position by setting aside the impugned orders and allowing the appeals with consequential relief. Conclusion: The Tribunal concluded that the NSE/BSE transaction charges, SEBI turnover fees, Stamp duty, Depository/Demat charges, and Security Transaction charges collected separately by the stock brokers should not be included in the taxable value of brokerage and commission charges. The Tribunal also ruled that the Demat charges are not taxable under "Banking and Financial Services." Consequently, the appeals were allowed, and the impugned orders were set aside, granting relief to the appellants.
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