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2014 (4) TMI 588 - AT - Service TaxValuation - inclusion of Delayed Payment Charges (DPC) - Whether the DPC collected by the appellants from their clients in those cases where the appellants have already made payments to the Exchange but has not recovered the same from their clients, are required to be considered as a part of the value of the services, so as to levy the service tax in respect of the same - Held that:- mandate of Section 67A of the Act is that it is only the commission/brokerage, which is liable to service tax and no other recovery made by the stock-broker can be held to be a part of the value of the service. The Tribunal very clearly observed that the receipts not in the nature of commission/brokerage should not be taxed in disguise. In as much as, we have already held that DPC is not a commission or a brokerage for sale/purchase of securities, as the same is not being collected from each and every customers but is relatable to only delayed payments by some of the customers, there is no justification for inclusion of the same in the value of the services. As is seen from the above, the DPCs recovered separately and shown separately in the invoices/bills cannot be held liable to payment of service tax. Admittedly, in the present case, such DPCs were being recovered by the appellants by issuing separate debit notes to their customers and by debiting the amounts in their running ledgers. As such, the clarification issued by the Board is fully applicable to the facts of the present case - appellants were maintaining all the records showing recover of said DPCs and were reflecting the same in their books of accounts as also in their balance-sheet. The Commissioner has invoked longer period only on the short ground that they have never disclosed the same to the Revenue and said non-payment of service tax is indicative of the assesses intention and motive to evade tax. However, we fail to understand that if the fact of non-payment of tax, by itself, can be made a ground by attributing mala fide to an assessee, the limitation period would never be applicable in any case of non-payment and the resultant confirmation of demand. In any case, Commissioner has also observed that it is possible to invoke extended period of limitation in the case of service tax even in a situation where there is nothing to evade payment of duty, in as much there is no requirement that suppression should with intention to evade - Decided in favour of assessee.
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