TMI Blog2019 (1) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... s when the activity is of “Banking & Other Financial Service”. The interest on delayed payment of consideration in the present case i.e. delay in payment of brokerage and fee etc would not ipso facto lead to conclusion that the Appellant is rendering any banking or financial activity. The contention of the revenue that since the Appellant is also registered under the category of “Banking and Other Financial service” under Service tax and hence interest income is falling under that heading is wrong preposition. The interest arising due to late payment of dues by the clients to the Appellant would not fall under the category of Banking & other Financial service - the activity of the Appellant are not covered under the category of Bankin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me they were issued show cause notice dated 24.10.2016 covering the period 01.04.2011 to 31.03.2016. It was alleged that the Appellant is availing cenvat credit and are also providing services in the nature of banking and financial service which is exempted from service tax. Therefore in accordance with the provisions of Rule 6 (3) (b) they were required to pay for every month an amount equal to 50% of the cenvat credit availed by them on input and input services. It was also alleged that the Appellant has utilized such credit for payment of their service tax liability. Accordingly it was proposed to demand and recover service tax amount of ₹ 4,99,80,644/- from them in terms of Rule 14 read with Rule 6 (3B) of Cenvat Credit Rules. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse no entity can carry on the business of Banking/ Non banking or financial institution. They are engaged only in providing stock broking service. No part of their business is receipt of deposits or lending money and in fact they are barred from undertaking any such activity. None of their service falls under such category. He relies upon Board Circular No. 83/1/2006 ST dated 04.07.2006 ST dated 04.07.2006 that the services should be such as rendered by banks or financial institutions. He relies upon the Tribunal order in case of M/s Karvy Consultants Ltd. vs. Assistant Commissioner, Hyderabad 2006 (1) STR 7 (AP) that unless the activities are undertaken of receiving deposits/ lending, service tax liability cannot be fastened. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of service tax on the ground of utilization of alleged non available cenvat is nothing but duplication of demand. He relies upon the judgment in case of M/s City Centre Mall Nashik Pvt. Ltd. 2017 TIOL 4322 CESTAT MUM. He states that the demand is time barred as the income for interest was appearing in Balance sheet. They were under bonafide belief that the interest income is not a service. The issue involved is of interpretation of law. They have been carrying out the activities even before levy of service tax. There is no positive act on their part and hence the demands are time barred as held in case of M/s Continental Foundation CCE 2007 (216) ELT 177 (SC). 4. Shri Jeetesh Nagori, Ld. Additional Commissioner (AR) appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 1994. It is an undisputed fact that the Appellant is not doing any banking or financing or leasing activity. The interest earned has to be from deposit, loans or advances when the activity is of Banking Other Financial Service . The interest on delayed payment of consideration in the present case i.e. delay in payment of brokerage and fee etc would not ipso facto lead to conclusion that the Appellant is rendering any banking or financial activity. The Appellant has rendered Stock Broking Service and it is only such services that the interest income has arisen. The contention of the revenue that since the Appellant is also registered under the category of Banking and Other Financial service under Service tax and hence interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd. vs. Assistant Commissioner of Customs Central Excise, Hyderabad II, 2006 (1) STR 7 (AP) wherein the Hon ble Court held as under : 18. Though the counter-affidavit places reliance solely on the certificate of registration issued to the petitioner by the Reserve Bank of India as a non-banking financial company , the show cause notice dated 27-12-2004 indicates that the petitioners were providing services as a depository participant. Whether or not, during the relevant period 16-7-2001 in 15-8-2002, the petitioner, as its principal business, was receiving deposits or lending money, are matters which are required to be examined by the 2nd respondent on the basis of information gathered by it and made available to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
