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TMI Blog2011 (9) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... t as sub-broker from the main broker would attract service tax has to be answered in the light of the judgment on this issue in the case of Vijay Sharma & Co. (2010 - TMI - 78818 - CESTAT, NEW DELHI - Service Tax). - Matter remanded back. - 150 of 2011 - ST/586/2011 - Dated:- 21-9-2011 - Archana Wadhwa, Rakesh Kumar, JJ. For Appellant: Shri Alok Kothari, Adv. For Respondent: Shri Amrish Jain, SDR Per: Rakesh Kumar: The appellant are registered with Sebi as sub-broker. The period of dispute in this case is from April 2005 to June 2006. During the period of dispute, as per the Sebi guidelines, even though a transaction of sale or purchase of a security was through a sub-broker, it was only the main broker who could issue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by which the service tax demand, as made in the show cause notice, was confirmed against the appellant alongwith interest and beside this, penalty of Rs.3,99,081/- each was imposed under Section 76 and 78 of the Finance Act, 1994. On appeal to Commissioner (Appeals), the order of the Assistant Commissioner was upheld vide order-in-appeal dated 19/11/2010. Against this order of the Commissioner (Appeals), this appeal has been filed alongwith stay application. 2. Though, today this matter was listed for hearing of stay application only, after hearing this matter for sometime, we were of the view that this matter can be finally disposed of. Accordingly, with consent of both the sides, the matter is heard for final disposal after waiving the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be set off against the ultimate service tax liability of the stock broker, if the stock broker is liable to service tax for the self same transaction, but such set off depends upon facts and circumstances of each case and subject to verification of evidence as well as the rules made under the law w.e.f. 10/9/04, that this judgment of the Larger Bench of the Tribunal has not been considered in the impugned order while in view of this judgment of the Larger Bench of the Tribunal, there would be no service tax liability on the appellant, and that in view of this, the impugned order is not sustainable. 3.1 Shri Amresh Jain, the learned Senior Departmental Representative, defended the impugned order by reiterating the findings of the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... securities covered by Section 65 (105) (a). In view of this, in our view, their activity cannot be said to be Business Auxiliary Service provided to the main broker. Since, the appellant have to be treated as a broker and the service provided by them is service of stock broker in connection with sale or purchase of securities listed on stock exchange for their clients and since during the period of dispute, it is the main broker who was issuing the transaction note and was receiving the commission from the client, a part of which was received by the appellant as a sub-broker, the question as to whether the part of brokerage received by the appellant as sub-broker from the main broker would attract service tax has to be answered in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X
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