2016 (2) TMI 772

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....542/- as provider of 'business auxiliary service' for the period between 2005-06 and 2009-10 along with appropriate interest besides being penalized under section 76, 77 and 78 of the Finance Act, 1994. 2. The appellant claims that, as a broker, they have an empanelled list of potential financiers and that, on being approached by potential borrowers, the details of offering of these financiers are made available to those in need of finance. Thereafter, the potential borrower and the potential financier settle the terms of loan following which the appellant issues a memo of interest which shows the details of interest to be paid by the borrower to the financier, the amount of commission/brokerage to be paid to the appellant and the tax ....

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....ying the service rendered will taint the bill. Even where the possibility of inclusion in no more than one entry exists, the law invariably prescribes the methodology for isolating the one that describes the activity most accurately. There is, therefore, no excuse for uncertainty in identifying the specific nature of taxability. Section 65(19) of Finance Act, 1994 enumerates a variety of sub-categories and tax liability germinates from fitment in one or other sub-categories or by being a commission agent. And the impugned order would lose its sanctity should there be failure to do so. 4. It is seen from paragraph 13.6 and 13.7 of the impugned order that the adjudicating authority appears to believe that the appellant is a commission agent ....

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....o contend that brokers are not agents acting on behalf of either party in a loan transaction and thus eliminating the deeming of the appellant as a commission agent. Further reliance was placed on the decision of Hon'ble High Court of Bombay in Commissioner of Sales Tax v. Pandurang Tukaram Dalal [AIR 1957 Nag 61]. The decision of the Hon'ble High Court of Karnataka in N. Ayyanna Setty & Sons and Others v. State of Mysore [(1961) 12 STC 731 (Kar)] was produced before us. 6. Learned Authorized Representative relies upon the decision of the Tribunal in Commissioner of Central Excise, Customs & Service Tax, BBSR-I v Sanfin [2009 (13) STR 551 (Tri-Kolkata)] and highlighted the finding in the impugned order that the activity of the appe....