2018 (11) TMI 1383 - AT - Service Tax

Valuation - inclusion of transaction charges collected by the appellant from their clients for providing stock broking services in connection with the sale or purchase of shares and securities - CENVAT Credit - duty paying documents. Inclusion of transaction charges - Held that - The transaction charges recovered by the appellant from their respective clients is primarily statutory levy on the trading members and not on the clients of the trading members - if any of such charges which are primarily legal responsibility for payment with the appellant and same have been passed on to their clients, in case, same that will certainly form the part of gross value charged by them for providing taxable service. In this regard, the legal responsibility of the payment of transaction charges was of the trading members (in this case apparently the appellant) and as levy of transaction charges from the concerned stock exchange is on the appellant and since this liability have been passed on by him on their clients, the same need to be included in the taxable value as per the provision of Section 67 of the Finance Act, 1994. Accordingly, there is no merit in the appeal on this count and same is dismissed. CENVAT Credit - duty paying documents - Rule 9 (1) of the Cenvat Credit Rules - Held that - Since the details contained in such documents has not been discussed either in the show cause notice or in the order-in-original it is very difficult to ascertain whether the documents on the strength of which appellants have availed the Cenvat credit fulfilled the requirement of details to be available as prescribed under proviso to Rule 9 (2) of the Cenvat Credit Rule or not - a substantive benefit cannot be denied to the appellant only for some procedural lapses and if all the requisite details are available on the documents on the strength of which Cenvat credit has been availed by them and as provided under proviso to Rule 9 (2) of the Cenvat Credit Rule, same cannot be denied to them legally - the department should verify the documents again on the strength of which the Cenvat credit has been availed by them and if such documents contained all the requisite details has been prescribed under proviso to Rule 9 (2) of the Cenvat Credit Rules the substantive benefit of Cenvat credit cannot be denied to them. Appeal dismissed in part and part matter on remand.

Summary

Issues:
1. Whether transaction charges collected by the appellant for stock broking services should be included in the taxable value for service tax.
2. Whether Cenvat credit availed by the appellant on unapproved documents should be allowed.

Analysis:
1. The appellant, engaged in share broking services, collected transaction charges from clients but failed to pay service tax from October 2001 to March 2006. The department issued a show cause notice demanding service tax, which was confirmed in the order-in-original. The appellant contended that transaction charges were deposited with stock exchanges/statutory bodies as pure agents and not taxable. Section 67 of the Finance Act, 1994 states that the gross amount charged by the service provider is taxable. Guidelines from the National Stock Exchange clarified that transaction charges were a statutory levy on trading members. The tribunal held that if charges passed on to clients formed part of the gross value, they were taxable. Thus, the appeal on this issue was dismissed.

2. Regarding Cenvat credit of a specific amount availed on unapproved documents, the tribunal found that the documents' details were not discussed in the notice or order-in-original. It was deemed difficult to ascertain if the documents fulfilled the requirements under the Cenvat Credit Rules. The tribunal opined that substantive benefits should not be denied for procedural lapses. It was decided that if all requisite details were available on the documents, the credit could not be denied. The matter was sent back for reevaluation based on the guidelines. The order-in-original's major demand was upheld, but the denial of Cenvat credit was subject to further adjudication.

In conclusion, the tribunal dismissed part of the appeal related to transaction charges but allowed a remand for the issue of Cenvat credit.