9911796707
TMI Blog2021 (4) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... present case are that the appellant is engaged in providing taxable services viz. Commercial Training & Coaching Services as defined under Section 65B(44) of the Finance Act, 1994 and are availing the facility of cenvat credit of inputs, capital goods and input services under the Cenvat Credit Rules, 2004. During the course of verification of the appellant‟s records by the Audit wing of the Department involving the period from 2012-2017, it was observed that for the period involving 2014-2015, 2015-16 & 2016-17, the appellant has declared Profit on sale of Mutual fund investments involving amounts of Rs. 16,60,045/- (Rupees Sixteen Lakhs Sixty Thousand and Forty Five only), Rs. 36,82,138/- (Rupees Thirty Six Lakhs Eighty Two Thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsultant for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the adjudicating authority has wrongly relied upon the decision of the Supreme Court in the case of G. Venkataswami Naidu & Co. Vs. CIT 1959 (35) ITR 594 (S.C) which deals with Income Tax on sale of plots. He further submitted that adjudicating authority has completely ignored the fundamental principle that in order to levy service tax there should be a service provider and a service receiver and in the present case, the appellant cannot be termed as "service provider‟. He further submitted that an investor who invested in mutual funds units ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of free transferability of mutual fund units to third parties. He further submitted that once the appellant is not a trader in the securities, the question of proportionate reversal on common input services used for both trading and output services under Rule 6(3)(b) does not arise. He further submitted that the Department has wrongly invoked the extended period of limitation and the substantial demand is barred by limitation. He further submits that the period in dispute is from 2014-15 to 2015-16 and 2016-17 and the show-cause notice was issued on 15/06/2018 which is substantially time-barred. He further submitted that suppression cannot be alleged as the appellant has been regularly filing returns and has provided all the information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled in providing the output services and exempted activity i.e. trading and hence are liable to pay 6%/7% of the amount of exempted services. Further I find that the "trading‟ has not been defined under the Service Tax but in the context of securities, "trading‟ means an activity where a person is engaged in selling the goods and occupy for the purpose of making profit but certainly trading is different from redemption of mutual fund units, in the present case appellant cannot transfer the mutual fund units to third party and give only by redemption to the mutual fund because the appellant is not permitted to trade mutual fund unit in the absence of a license from the SEBI. There is a restriction on the right to transfer unit a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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