TMI Blog2018 (11) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... BAD [2018 (2) TMI 569 - CESTAT AHMEDABAD], where it was held that the allegation of the department that the demat charges collected by the brokers are banking and financial service, hence taxable, also devoid of merit in as much such charges are collected by the Appellant, and paid to the depository participants viz. CDSL/NSDL who are authorised to levy such charges under the Depositories Act, 1996. Demand set aside - appeal allowed - decided in favor of appellant. - Appeal No. ST/467-468/2010-DB - A/12672-12673/2018 - Dated:- 27-11-2018 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri Aditya Tripathi, Advocate for the Appellant Shri S.K. Shukla, Superintendent (AR) for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for service tax. On this issue much water has flown as in various judgments, this Tribunal has consistently held that all these charges being statutory charges as per SEBI Rules, should not be liable for service tax. This Tribunal, in a bunch of 28 appeals, vide order No. A/12761-12788/2017 dated 29.09.2017, passed the following order:- 9. The limited question of law involved in the present appeals is to addressed is: whether the appellants-stock brokers are required to include NSE/BSE transaction charges, SEBI turnover fees, Stamp duty, Depository/Demat charges and Security Transaction charges in the value of brokerage and commission charges recovered from their customers/clients. The contention of the Advocates for the respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be so interpreted by expanding its width as to include therein the power to tax by implication or by necessary inference. The judicial opinion of binding authority flowing from several pronouncements of the Hon ble Supreme Court has settled these principles: (I) in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statutes cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the Light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that relates to taxable service provided by stock broker and that is under consideration in these appeals. That clause states that aggregate of commission or brokerage charged by a broker on the sale or purchase of securities including the commission or brokerage paid by the stock broker to any sub-broker shall be Liable to service tax. Thus, there is no extended meaning of measure of levy even by amended definition of valuation of taxable service. 12.5 Provision of Section 67 provides the basis to determine the value of taxable service. No ambiguity persists in Section 67 of the Act. No receipt other than commission or brokerage made by a stock broker is intended to be brought to the ambit of assessable value of service provided by stoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the price and value is the function of the price. This is conceptual meaning of value. Section 67 is the sole repository of law governing value of taxable service provided by the stock broker. Any charge on the non-includible elements other than brokerage or commission will result in arbitrary taxation. Similarly receipts not in the nature of commission or brokerage should not be taxed in disguise. The brokerage or commission service provided by stock broker shall be liable to service tax. That being consideration for taxable service provided, become assessable value of such service. Because tax is compulsory exaction, no subject shall be made Liable without authority of law. To the extent authority is vested, only to that extent tax can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved towards consideration in the nature of commission or brokerage of sale or purchase of securities. While burden of proof was on Revenue to establish that such receipts were in the nature of commission or brokerage or had the characteristic of such nature that was failed to be discharged. The character of commission or brokerage is remuneration for the service of stock broking provided by a stock broker to investors. Therefore, aforesaid charges realized by appellants were not being of commission or brokerage are not taxable and shall not form part of gross value of taxable service. On merit, all the appellants succeed on the fundamental principles of taxation. Therefore, other contentions on merit made in respective appeals are not consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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