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TMI Blog2016 (1) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... r may not be brokerage service. It was only a service which facilitates the work of the Principal Stock Broker and therefore would get covered under the category of Business Auxiliary Services. We reject this view for two reasons. The first reason is that this view also taken in the case of Vijay Sharma [2010 (4) TMI 570 - CESTAT, NEW DELHI], was finally settled by the Larger Bench decision referred above. Secondly, we find that the show-cause notice in this case was raised on the respondent classifying the service as Stock Broker Service. Therefore, it cannot now be stated that the demand is payable under the Business Auxiliary Services. Appeal of the revenue dismissed - Decided against the revenue. - Appeal Nos. ST/1741 to 1746/2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;Stock Broker Services'. The adjudicating authority confirmed the demand of duty along with interest and imposed penalties under Section 77 and 78 of the Finance Act, 1994. However, in appeal proceedings, the Commissioner (Appeals) observed that the Service Tax was already paid on the total brokerage by the main broker. The taxable services cannot be taxed twice. He observed that SEBI vide its Circular dated 5.8.2005 prohibited sub-brokers to issue contract notes. Therefore, confusion remained from the 10.9.2004 to 6.7.2009. Thereafter CBE C excluded the sub-brokers from the purview of Service Tax by excluding the words sub-broker from the definition of Stock-broker w.e.f . 6.7.2009. Consequently, the Commissioner (Appeals) set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a narrow compass. There is no dispute by either side that a sub-broker is falling under the definition of stock broker under Section 65(101) of the Finance Act, 1994 w.e.f . 10-9-2004. The definition reads as under:- (101) 'Stock-broker' means a person, who has either made an application for registration or is registered as a stock-broker or sub-broker, as the case may be, in accordance with the rules and regulations made under SEBI Act 1992 . There is also no dispute by either side that when an application is made by a person for registration as a sub-broker or a person registered as such under SEBI Act 1992 read with the regulations made thereunder, shall be called as stock-broker. So also there is no dispute that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roker has paid service tax on such service, the stock broker shall be entitled to the credit of service tax. Such a proposition finds support from the basic rule of Cenvat credit and service of a sub-broker may be input service provided for a stock-broker if there is integrity between the services. Therefore, tax paid by a sub-broker may not be denied to be set off against ultimate service tax liability of the stock broker if the stock broker is made liable to service tax for the self same transaction. Such set off depends on the facts and circumstances of each case and subject to verification of evidence as well as rules made under the law w.e.f . 10-9-2004. No set off is permissible prior to this date when sub-broker was not within the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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