TMI Blog2005 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Interest should not be paid by them on the amount demanded at (i) above under Section 75 of the Finance Act, 1994. (iii) A penalty should not be imposed on them under Section 76 of the Finance Act, 1994. (iv) A penalty should not be imposed on them under Section 77 of the Finance Act, 1994. (v) A penalty should not be imposed on them under Section 78 of the Finance Act, 1994. 3. The petitioner was asked to produce all the evidence upon which they intended to rely in their defence as also to indicate in their written reply whether they wished to be heard in person before the case was adjudicated. 4. The petitioner, a company registered under the Companies Act, was earlier, in the course of its business, carrying on depository participant services, Registrar and transferring agency etc. It is the case of the petitioner that during the year 1996 it had accepted deposits and advanced loans and was therefore required to lake a licence as a non-banking financial Company under Section 45 of the Reserve Bank of India Act. During the year 1997, the petitioner is said to have resolved to give up the said activity and consequent thereto the deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th effect from 16-8-2002 and under sub-clause (zm) of Section 65(90) with effect from 10-9-2004 and was paying service tax accordingly. 10. As referred to above taxable service, during the relevant period, was defined to mean any service including any service, provided to a customer by a non-banking financial company, in relation to banking and other financial services. Section 65(11) of Finance Act, 2001 defined "banking and other financial service" to mean :- (a) the following services provided by a banking company or a financial institution including a non-banking financial company namely : - (i) financial leasing services including equipment leasing and hire-purchase by a body corporate; (ii) credit card services; (iii) merchant banking services; (iv) securities and foreign exchange (forex) broking; (v) asset management including portfolio management, all forms of fund management, pension fund management, custodial, depository and trust services, but does not include cash; management; (vi) advisory and other auxiliary financial service; including investment and portfolio research and advice, advice on mergers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Bank of India Act, 1934 and while the petitioner started paying service tax with effect 15-8-2002 they were required to pay service tax with effect from 16-7-2001, inasmuch as the certificate of registration to carry on the business of a non-banking financial company was valid and in force during the period 16-7-2001 to 15-8-2002. It is also stated in the counter-affidavit that service tax was payable on depository charges received by the petitioner from 16-7-2001 to 15-8-2001, that non-payment of service tax attracts penalty and accordingly imposition of penalty was proposed in the show cause notice, that irrespective of whether or not the petitioner had accepted deposits during the relevant period, they were required to be classified under clause (ii) of Section 45-I(f) of the Reserve Bank of India, 1934 as the certificate of registration was not revoked during the said period. It is also contended that the petitioner is covered by the definition of "banking and other financial services" under Section 65 of the Finance Act, 1994 as amended by the Finance Act, 2001, in view of it being granted the certificate of registration under Section 45-I(f) of the Reserve Bank of India A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust interpret a taxing statute in the light of what is clearly expressed; it cannot imply anything, which is not expressed, it cannot import provisions in the statutes so as to supply any assumed deficiency.........." 16. Learned Senior Counsel, on referring to the averments in the counter-affidavit, submits that the sole basis for the 2nd respondent to hold that the petitioner is a non-banking financial company is only the certificate of registration issued in its favour by the Reserve Bank of India and for no other reason. He also submits that there is no denial in the said counter-affidavit, of the petitioner's assertion that it did not accept deposits or lend any amount during the period from 16-7-2001 to 15-8-2002. 17. We agree with the submission of the learned Senior Counsel that the certificate of registration by itself would not bring the petitioner within the definition of a "non-banking financial company" inasmuch as Section 45-I(f)(ii) requires in addition thereto, the company to carry on, as its principal business, receipt of deposits or lending of money. While it is true that the counter-affidavit is silent as to whether or not the petitioner's principal busine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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