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Shreyas Stocks (P.) Ltd V/S Commissioner of GST & Central Excise, Chennai


Company & Directors' Information:- SHREYA'S INDIA PRIVATE LIMITED [Active] CIN = U51102RJ1997PTC013539

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- SHREYAS CORPORATION PRIVATE LIMITED [Active] CIN = U24248GJ2013PTC076437

    Final Order No. 40412 of 2018 and Appeal No. ST/MISC/41607 of 2017 and ST/355 of 2010

    Decided On, 08 February 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONORABLE JUSTICE: SULEKHA BEEVI C.S.
    By, MEMBER AND THE HONORABLE JUSTICE: MADHU MOHAN DAMODHAR
    By, MEMBER

    For Petitioner: Radhika Chandrasekar, Advocate And For Respondents: R. Subramaniyam, AC (AR)



Judgment Text


1. The facts of the case in brief are that the appellants are registered with Service Tax department for rendering taxable service under the category of "Stock Broking Service". During the course of audit, it was noticed that in addition to brokerage charges appellants had collected transaction charges from their customers on the value of purchase and sale of the securities from April, 2004 to June, 2007 amounting to Rs. 81,37,357/-. Hence, a SCN dated 27.11.2007 was issued to the appellants inter alia proposing to demand service tax of Rs. 4,64,686 with interest thereof and also imposition of penalties under various provisions of law. In adjudication, these proposals were confirmed and in addition, penalties were also imposed under Sections 76 and 78 of the Finance Act, 1994. On appeal, penalty under 76 was set aside, however, the rest of the order of the original authority was upheld by the Commissioner (Appeals). Hence, this appeal. Today when the matter came up for hearing, Ld. Advocate Ms. Radhika Chandrasekar submitted that prior to the amendment to the Finance Act, 1994 passed w.e.f. 18.4.2006, valuation of taxable services for charging service tax as per Section 67 ibid read as under:-

"67 Valuation of taxable services for charging service tax

For the purposes of this Chapter, the value of any taxable service shall be the gross amount charged by the service provider for such service provided or to be provided by him.

Explanation 1. For the removal of doubts, it is hereby declared that the value of a taxable service, as the case may be, includes,

(a) the aggregate of commission or brokerage charged by a broker on the sale or purchase of securities including the commission or brokerage paid by the stockbroker to any sub-broker;

Ld. Counsel submits that the transaction charges were not charged by them but were charged by the stock exchange and that they were only collecting the amount from their clients and paying it on their behalf to the stock exchange. She also submits that wherever they had collected the amounts more than the transaction charges, they had discharged service tax liability on such excess amounts, a fact which is not disputed by the department. She further submits that the matter is no longer res Integra and has been decided in favour of the appellants in a number of Tribunal decisions. Ld. Counsel relies upon the following Tribunal decisions in support of her arguments:-

a. First Securities (P.) Ltd. v. CST[2008] 13 STT 199 (Bang. - CESTAT)

b. LSE Securities Ltd. v. CCE : [2012] 22 taxmann.com 253/36 STT 73 (New Delhi - CESTAT)

2. On the other hand, Ld. AR, Shri R. Subramaniyam, AC supports the impugned order. He draws our attention to the finding of the Commissioner (Appeals) that the amounts collected by the appellant as transaction charges is nothing but consideration received by them, which is therefore required to be added in the taxable value and the liability to pay service tax will definitely arise.

3. Heard both sides and have gone through the facts.

4.1 We find merit in the arguments of the Ld. Counsel. It cannot be nobody's case that the transaction charges are charged by the appellants on the clients. It is evident that these charges are required to be paid by the clients only to the stock exchange for the transactions in shares or stocks that they may have entered into on their own or through the stock brokers like the appellant herein. Merely because the appellants are collecting the said charges from their clients and remitting the same to the concerned stock exchange cannot be a reason for considering such amounts as received by them for "services rendered by them". We find that this is the very ratio that has been laid down in the Tribunal decisions relied upon by the Ld. Counsel.

4.2 In the case of First Securities (P.) Ltd. (supra) the Tribunal has held that handling charges collected from investors and the amounts collected towards transaction charges cannot be equated to brokerage or commission for purchase of securities. The relevant portion of the said decision is reproduced as under:-

'6. In the impugned order, the Commissioner (Appeals) has held that the lower authority is right in including the 'handling charges' and 'transactions charges' as part of the taxable value as additional brokerage for Service Tax purpose. The learned Advocate who appeared for the appellants took us through the impugned order and stated that the Commissioner (Appeals) was not justified in stating that the appellants has not produced any bill/other documentary evidence to counter the findings of the lower authority. He invited our attention to Annexure 'D' in Page 38 of Paper Book wherein a letter addressed to the Asstt. Commissioner giving details of transaction charges issued from National Stock Exchange of India Ltd. for year 1999-2003 was furnished. Further he invited our attention to Section 67(a) of the Finance Act which deals with valuation of taxable services in relation to service provider by the stock broker. In terms of the above provisions, the value of taxable service in relation to service provided by a stock broker, shall be the aggregate of the commission or brokerage charged by him on the sale or purchase of securities from the investors and includes the commission or brokerage paid by the stock broker to any sub-broker. The handling charges collected from the investors cannot be called as brokerage or commission. Similarly, the amounts collected towards transaction charges by the appellants also cannot be equated to brokerage or commission. It is seen that the transaction charges collected have been paid to the National Stock Exchange of India Ltd. In Kohler's Dictionary for Accountants, 6th Edition, the term 'brokerage' is defined as follows :-

"brokerage A commission, paid or accruing to a broker, arising from effecting a deal between seller and buyer, and borne by either party in accordance with custom, regulation or special agreement. It may be fixed, as in stock market transactions, by trade or government bodies, and may take any of various forms, such as a percentage or modification of selling price; a (finder's) fee; an underwriting or other discount (4); a concession or other advantage (whether or not transaction-related)."
The handling charges are the expenses incurred for handling shares on delivery. The appellants have clarified that prior to 2001, there used to be physical delivery of scrips and certificates and the appellants were charging towards 'handling' of scrips and certificates. The 'handling charges' were collected from certain investors/clients. In respect of speculative transactions, no handling charges were collected from the investors/clients as there was no handling of scrips and certificates. We are convinced that the handling charge is not in the nature of commission or brokerage for purchase of securities. They are incurred in connection with the delivery of scrips. In fine, we hold that the value of taxable services in respect of a stock broker will not include transaction charges and handling charges. Therefore there is no merit in the impugned order. Hence we allow the appeal with consequential relief.'

The same ratio has been relied in LSE Securities Ltd. (supra).

The relevant portion of the said decision is reproduced as below:-

"16. The appellants in these appeals received "turnover charges", stamp duty, BSE charges, SEBI fees and DEMAT charges contending that the same was payable to different authorities and claimed that the same is not taxable. But Revenue taxed the same on the ground that such receipt by stock broker was liable to tax. Revenue failed to bring out whether the turnover charges and other charges in dispute in these appeals received by appellant were commission or brokerage. The character of receipts was claimed by appellants as recoveries from investors to make payment thereof to respective authorities in accordance with statutory provisions of Indian Stamp Act and SEBI guidelines and were not received towards consideration in the nature of commission or brokerage of sale or purchase of securities. While burden of proof was on Revenue 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."
4.3 In view of the discussions

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made herein above and in particular following the ratio laid down by the Tribunal in the cases referred supra, we hold in favour of the appellants. The impugned order cannot be sustained for which reason it is set aside. Appeal is allowed with consequential reliefs, if any, as per law. Revenue filed miscellaneous application seeking amendment of the cause title on the ground that the department is shown in the above appeal with jurisdiction of the Commissioner of Central Excise and Service Tax, Chennai, whereas now the same has been changed as The Commissioner of GST & Central Excise, Chennai South Commissionerate, MHU Complex, 692, Anna Salai, Nandanam, Chennai - 600 035. We find that the prayer for amendment of the cause title as also the address for communication of the department needs to be amended in accordance with the change of address/jurisdiction of the department. Miscellaneous application for change of cause title as well as change of address is therefore allowed.
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