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2018 (4) TMI 1335 - CESTAT MUMBAISharing of revenue - Business support services - Appellant have entered into agreement with M/s RMIL outlining the role of each of them in providing consolidate service to the investor. By virtue of agreement M/s RMIL was entrusted with the sole responsibility of collection of card fee including service tax for such consolidated service to the customer - SCN issued on the ground that Appellant is engaged in providing infrastructure services, namely its internet based trading platform to the clients of M/s RMIL and such service are classifiable under taxable service category of “Business Support Service”. Held that: - The discharge of service tax liability has been made by M/s RMIL as it has collected fee as agent of the Appellant and paid applicable service tax before remitting the 95% amount to the Appellant. The amount thus shared in between the Appellant and M/s RMIL cannot be taxed as it has already suffered taxes at the time of receipt by M/s RMIL - no service tax demand can be made against Appellant. Scope of SCN - Held that: - on the one hand the show cause notice has demanded tax under the category of “Business Support Service” on the ground that the Appellant made available its infrastructure namely its internet based trading platform to clients of M/s RMIL and on the other hand the impugned order confirmed the demand on the ground that Appellant is providing stock broking service to investor. This amounts to confirmation of demand beyond the scope of show cause notice which is not permissible under law. Extended period of limitation - penalty - Held that: - the demand pertains to the period 2008 – 09 to 2009 – 10 is hit by limitation of time - The discharge of service tax on entire card fee by M/s RMIL clearly shows that the Appellant had bonafide belief that M/s RMIL is only liable to tax - extended period and penalty set aside. Appeal allowed - decided in favor of appellant.
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