2013 (9) TMI 862 - AT - Service Tax

Valuation - Stock broking services and banking and financial servicee - Section 67(1A) - Whether an independent analysis of Section 67 as it now stands, should be made de hors Tribunal s decision in LSE Securities Ltd. (supra), for the period subsequent to 18.4.06 or Section 67 should be considered as having been not altered in view of incorporation of Explanation 1 in Rule 6 of the 2006 Rules, is more appropriately to be considered at the final hearing of the appeal. - Held that - The valuation provision incorporated in section 67 of the Act envisaged that aggregate of commission or brokerage only shall be measure of tax. Basis of taxation was provided in express terms and no implied taxation was permitted by law. - Provision of section 67 provides the basis to determine the value of taxable service. No receipt other than commission or brokerage made by a stock broker is intended to be brought to the ambit of assessable value of service provided by stock broker. Charging section in a taxing statute is to be construed strictly - Following decision of LSE Securities Ltd. vs. C.C.E., Ludhiana 2012 (6) TMI 364 - CESTAT, New Delhi - prima facie case is in favor of assessee - stay granted.

Summary

Issues:
1. Confirmation of service tax liability on the assessee for providing 'stock broker' service and banking and financial service.
2. Interpretation of statutory provisions regarding stock brokering service.
3. Application of Tribunal's decision in LSE Securities Ltd. case.
4. Determination of liability post-amendment of Section 67.

Analysis:

The judgment by the Appellate Tribunal CESTAT NEW DELHI involved the confirmation of service tax liability amounting to approximately Rs.16.4 lakhs on the assessee for offering 'stock broker' service and banking and financial service. The appellate authority granted relief concerning certain components of the assessed liability, specifically late payment/trade violation charges and penalty income. The counsel for the assessee contended that the balance liability post the relief granted would be around Rs.1.26 lakhs attributed to the liability related to banking and financial services only, with the remaining for stock brokering service.

Regarding the stock brokering service, the Tribunal considered the evolution of relevant statutory provisions over time. Initially, Section 67(1A) was in force, followed by the addition of Explanation 1 from 15.07.01 to 17.4.06, which included certain charges in the value of taxable services. However, the Tribunal in a previous case concluded that certain charges like turnover charges, stamp duty, and others are not taxable components. Subsequently, with an amendment in Section 67 from 18.4.06, Explanation 1 and Explanation 3 were deleted, with Explanation 1 being incorporated into Rule 6 of the Service Tax Rules, 2006.

The Tribunal deliberated on whether an independent analysis of Section 67 post the amendment should be conducted regardless of previous decisions. However, for the time being, the Tribunal decided to apply the precedent set in the LSE Securities Ltd. case for the interpretation of the taxable component of stock broking service both before and after 18.4.06. Consequently, the Tribunal granted a waiver of pre-deposit and stayed further proceedings on the condition that the petitioner remits Rs.1.26 lakhs related to banking and financial services, along with interest, within four weeks. Failure to comply would result in the dismissal of the appeal for non-payment.

In conclusion, the Tribunal's judgment provided clarity on the interpretation of statutory provisions, the application of previous decisions, and the determination of the liability post-amendment, ensuring a fair and reasoned approach to resolving the issues at hand.