TMI Blog2018 (12) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... amesh Nair Brief facts of the case are that the appellant are engaged in providing Service under the category of Stock Broker as defined under Section 69 of the Finance Act, 1994 (herein after referred to as the Act ) and hold a valid Service Tax Registration No. AAACK8760EST001. It was observed that the appellants had not paid Service Tax on certain amount received on account of their services, such as NSE/BSE transaction charges and SEBI turnover fees which forms an integral part on their services viz. Stock Broker Service. The case of the department is that the appellants were availing wrong exemption on certain amount received by them during providing their taxable services, such as NSE/BSE transaction charges and SEBI turnover fees as non-taxable amount. However it was observed that they were charging and collecting such amount in their billing / contract notes from their clients/ customers. Accordingly, the Services Tax remands of such NSE/BSE charges were proposed the same confirmed by the adjudicating authority. The Ld. Commissioner (Appeals) in the appeal filed by the appellant also upheld the demand confirmed by the Original Authority, therefore, the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra). Their Lordships have observed as follows. 29) In the present case, the aforesaid view gets strengthened from the manner in which the Legislature itself acted. Realising that Section 67, dealing with valuation of taxable services, does not include reimbursable expenses for providing such service, the Legislature amended by Finance Act, 2015 with effect from May 14, 2015, whereby Clause (a) which deals with 'consideration' is suitably amended to include reimbursable expenditure or cost incurred by the service provider and charged, in the course of providing or agreeing to provide a taxable service. Thus, only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax. Though, it was not argued by the learned counsel for the Department that Section 67 is a declaratory provision, nor could it be argued so, as we find that this is a substantive change brought about with the amendment to Section 67 and, therefore, has to be prospective in nature. On this aspect of the matter, we may usefully refer to the Constitution Bench judgment in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es v. Yamashita-Shinnihon Steamship Co. Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later. 30) As a result, we do not find any merit in any of those appeals which are accordingly dismissed. 7. In the result Revenues appeal is dismissed and the assesses appeals is allowed. Appeals are disposed as above. Indses Securities Finance Ltd Vs. CST 2018 (2) TMI-569-CESTAT-AHMEDABAD 9. The limited question of law involved in the present appeals is to be addressed is: whether the appellants-stock brokers are required to include NSE/BSE transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. 12.3 There is nothing unjust in the taxpayer escaping if the letter of the law fails to catch him on account of the Legislature s failure to express itself clearly. It is well settled that power to tax cannot be inferred by implication; there must be a charging section specifically empowering the State to levy tax. When these are the principles laid down by Apex Court in the case of State of West Bengal v. Kesoram Industries Ltd. - (2004) 10 SCC 201, bringing a strange element to the ambit of tax shall be without authority of law. There was no scope provided by Section 67 of the Act to expend its width to have artificial measure of levy bringing a receipt by implication or inference running counter to the charging provision. 12.4 The scheme of? valuation of aforesaid service which was in force till 15- 7-2001 underwent amendment by Finance Act, 2001. The amending Act replaced Section 67 by Finance Act, 2001, pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge its burden of proof to bring the subject into tax, there is no scope to bring any other element of receipt other than brokerage or commission to the scope of assessable value in respect of service provided by stock brokers. 14. Normally value? is derived from 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 be imposed. Commission or brokerage charged by stock broker are only liable to tax by express provision of law. Any other exercise of authority beyond that shall make that fatal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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