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TMI Blog2018 (2) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... NSDL who are authorised to levy such charges under the Depositories Act, 1996. Appeal allowed - decided in favor of appellant. - ST/124/2010-DB, ST/254/2010-DB, ST/286/2010-DB, ST/287/2010-DB, ST/288/2010-DB, ST/289/2010-DB, ST/309/2010-DB, ST/310/2010-DB, ST/328/2010-DB, ST/336/2010-DB, ST/359/2010-DB, ST/538/2010-DB, ST/539/2010-DB, ST/616/2010-DB, ST/628/2010-DB, - A/12761-12788/2017 - Dated:- 29-9-2017 - Dr D.M. Misra, Member (Judicial) And Shri Devender Singh, Member (Technical) ST/632/2010-DB, ST/633/2010-DB, ST/643/2010-DB, ST/649/2010-DB, ST/709/2010-DB, ST/452/2011-DB, ST/751/2011-DB, ST/44/2012-DB, ST/112/2012-DB, ST/212/2012-DB, ST/296/2012-DB For Applicant(s): Shri P M Dave, Shri Jigar Shah, Shri Bisan R Shah, Ms Priyanka Kalwani, Shri Nitesh Jain, Shri Amal Paresh Dave, Advocates And Shri V Khandhar, Shri Rahul Patel, Shri Nilesh Jain, Chartered Accountants For Respondent(s): Shri S Chitkara, Authorised Representative ORDER Per: Dr D.M. Misra The above mentioned appeals are filed against orders passed by the respective Commissioner(Appeals) since involve common issues are taken up together for disposal. 2. The appellants her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of services viz., Stock Exchange service has been introduced where under services provided by a recognized Stock Exchange in relation to assisting regulating or controlling the business of buying, selling or dealing securities had been subjected to levy of Service Tax. It is his contention that from May 2008 onwards NSE has been showing transaction charges separately in their bills and Service Tax was paid on the said charges. The appellant continued to show the NSE transaction charges like earlier and in their respective bills to their clients separately and its reimbursement has also been continued to be claimed from their clients in the same manner after the said levy. It is his contention that whether such NSE/BSE charges, Demat charges etc., recovered from the clients and separately shown in the same invoice are leviable to service tax has been considered by this Tribunal in the case of M/s LSE Securities Vs CCE, Ludhiana 2013 (29) STR. 591 (Tri.-Del) and M/s Consortium Securities Pvt Ltd Vs CST, New Delhi - 2017.TIOL.232.CESTAT.DEL . Further, he has submitted that the appellant have been reflecting such transaction charges in their respective invoices separately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue, on the other hand, vehemently argued that inclusion of these service or otherwise has been considered by the Board and a circular in this regard has been issued on 17.9.2010 whereunder it is clarified that the stamp duty and security transaction tax are considered to be the liability of the buyers/seller of the securities and since the broker as acting as pure agent, accordingly, these charges only to be not includable in the taxable amount in terms of Rule 5(2)of the Service Tax (Determination of Value) Rules, 2006 and all other charges by whatever name recovered by the brokers from the buyers/stock seller securities are includable in the taxable value in term of Rule 5(1) of Service Tax (determination of value) Rules 2006. Further, referring to the judgment of the Larger Bench of this Tribunal in the case of Sri Bhagavathy Traders CCE, Cochin - 2011(24) STR .290 (Tri.LB), the Ld. AR for the revenue submitted that in view of the principles of law laid down in the said judgment, the expenditures which are incurred by the stock brokers in providing the service cannot be excluded from the scope of stock broking service. It is his contention that in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e measure of tax. Basis of taxation was provided in express terms and no implied taxation was permitted by law. 12.2 Law is well settled that there is nothing like an implied power to tax. The source of power which does not specifically speak of taxation cannot be so interpreted by expanding its width as to include therein the power to tax by implication or by necessary inference. The judicial opinion of binding authority flowing from several pronouncements of the Hon ble Supreme Court has settled these principles : (i) in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statutes cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. 12.3 There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 2008 SC 1640]. 13. Learned Counsels arguing the matter are correct to say that budget speech of the Hon ble Finance Minister made clear what was intended to be taxed in respect of service provided by stock broker. It was submission of the learned Counsel Shri Mittal that insofar as stock brokers are concerned, brokerage or commission charged by them only from value of taxable service and that was intended to be taxed by the budget of 1994-95. This was the proposal in Part B of the Budget presented to the Parliament on 28th February, 1994. Reading of the legislative intent from the budget speech and the express legislation in Section 67 of the Act does not leave any room for implication of ambiguity. Therefore, express grant of the statute no way leaves scope for implication to make the statutory grant ineffective. Law being well settled that there is no intendment in taxation and the State has to discharge its burden of proof to bring the subject into tax, there is no scope to bring any other element of receipt other than brokerage or commission to the scope of assessable value in respect of service provided by stock brokers. 14. Normally value is derived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue to establish that such receipts were in the nature of commission or brokerage or had the characteristic of such nature that was failed to be discharged. The character of commission or brokerage is remuneration for the service of stock broking provided by a stock broker to investors. Therefore, aforesaid 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. On merit, all the appellants succeed on the fundamental principles of taxation. Therefore, other contentions on merit made in respective appeals are not considered in this order. 10. Similar view has been expressed recently by the Tribunal in M/s Consortium Securities Pvt Ltd. s case (supra). We do not find any reason to deviate from the ratio laid down in the aforesaid judgments of this Tribunal. We are also of the view that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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