TMI Blog2018 (7) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been paid on the transaction charges by NCDEX. In the given circumstances, confirmation of demand of the Service Tax, which has already been discharged by the exchange on whose behalf the appellant had collected those charges and remitted to the exchange, to our opinion, is a patent error on the part of the Commissioner (Appeals) - demand set aside. Penalties u/s 78 - Held that:- There was a reasonable cause on part of the appellant to not to pay Service Tax, which otherwise had been paid by the exchange on whose behalf appellant was collecting it and in fact was remitting it to exchange only for onwards discharge of liability - penalty set aside by invoking section 80 - penalty set aside. Appeal allowed - decided in favor of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest was set aside. The remaining demand of ₹ 2,35,794/- being the demand on transaction charges, subsequent to 6th May, 2008 was confirmed alongwith the interest. Penalty under Section 76 was set aside, however, under Section 78 was confirmed. Aggrieved of the said order, present appeal has been filed. 2. We have heard both the parties. 3. It is submitted on behalf of the appellant that they are providing services of a member of commodity exchange to itsclients and in consideration thereof they are charging fee in the name of brokerage or commission. However, they were discharging their liability for the said consideration. As far as turn-over / transaction charges were concerned, there were recovered by the appellants on act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mity, order is prayed to be upheld and the appeal is prayed to be dismissed. 5. After hearing both the parties and perusing the entire record, we are of the considered opinion that the appellants in the present case are seen to have been rendering two types of services: (1) Services of commodity exchange (2) Services of members. Since the commodity exchange is liable to deposit the tax on exchange service and the agent is liable to deposit the tax on agent service. It is the case of the appellant that both the parties are duly complying with the respective obligations. As far as the consideration of brokerage charges, it is admitted that the liability has been discharged. Since Brokerage/commission is a consideration which was paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rging the output service. Order to the said extent is hereby upheld. The penalty under Section 76 of the Act has also been rightly set aside by invoking the proviso to Section 76 as got inserted w.e.f 10th May, 2008. The said findings of the impugned order are also therefore upheld. However, with respect to the penalties under Section 78 of the Act, it is held that Commissioner (Appeals) has been wrong while holding that there was no disclosure by the appellant in the reference about collection of service charges and as such it is wrongly held to be suppression of fact. It is rather clear from the record that there was a reasonable cause on part of the appellant to not to pay Service Tax, which otherwise had been paid by the exchange on who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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