TMI Blog2012 (7) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission directly from mutual fund companies being a registered mutual fund distributors - applicants have not produced any documentary evidence in support of their contentions - applicant is directed to make pre-deposit 25 per cent of the service tax - ST/366 OF 2010 - S-145 (KOL.) OF 2012 - Dated:- 27-2-2012 - S.K. GAULE, DR. D.M. MISRA, JJ. Ravi Raghavan for the Applicant. B.B. Agarwal for the Respondent. ORDER S.K. Gaule, Technical Member Heard both sides. 2. The applicant filed this application for waiver of predeposit of service tax of Rs. 68,03,086/-, educational cess and equal amount of penalty under Section 76, penalty of Rs. 5,000/- under Section 77 and penalty of Rs. 70 lakhs (Rupees seventy lakhs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the definition of BAS up to 10.9.2004. In support of their contention, they have placed reliance of the Tribunal's decision in the case of CST v. P.N. Vijay Financial Services (P.) Ltd. [2008] 17 STT 107 (New Delhi - CESTAT) wherein it was held as under : "8. In any view, we have given doubts if the activity involved in the sale and purchase of units of mutual fund schemes would fall under clauses (ii) (iv) of Section 65(19). The said clauses refer to 'services'. The mutual fund units being 'goods' as per the definition under Section 65(50) of the Finance Act, 1994 read with Section 2(7) of the Sale of Goods Act, 1930, would fall under clause (i) of Section 65(19), namely, promotion or marketing or sale of goods. But as the 'Busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not even name the clients on whose behalf they were rendering such service. The contention is that the applicants have provided certain services to their clients for which they have also received payments as commission. Such service is regarding procurement of orders for sale of mutual funds on behalf of their clients, which fact has also been admitted by them. The contention is that the applicants are not providing any service to Mutual Fund Companies. The applicant is neither a distributor nor an agent of Mutual Fund Company. The contention is that the applicants have produced a copy of Certificate of Registration issued by the Association of Mutual Funds in India (AMFI) dated 1.10.03, which has been issued in the name of Sachdev Steel Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence in support of their contentions. In the circumstances, the applicant is not able to make out a prima facie case for total waiver of pre-deposit. The applicants did not plead financial hardship. The Hon'ble High Court of Andhra Pradesh in the case of CCE v. Sri Chaitanya Educational Committee [2011] 31 STT 22/10 taxmann.com 79 (AP), held that besides prima facie case, balance of convenience to be focused. The ratio of the decision of the Hon'ble High Court of Andhra Pradesh is in favour of the Department in this case. In view of the above, the applicant is directed to make pre-deposit 25 per cent of the service tax within eight weeks and report compliance on 3-5-2012. In case of non-compliance, the appeal will be dismissed without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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