2018 (7) TMI 1133

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....d contract service as they are charging various amounts under the head of brokerage charges, transaction charges and turnover charges etc. On the basis of an information gathered, the Department alleged that despite charging the aforesaid amounts from the clients, the appellants are not including the same in the value of taxable service for payment of Service Tax. Resultantly, show cause notice dated 16th April 2012 was served upon them. Levy of demand of Rs. 3,11,169/- along with proportionate interest and the penalties was proposed. The said show cause notice was initially adjudicated by Assistant Commissioner vide Order dated 30th January, 2014 confirming the entire demand. The said order was challenged and vide the impugned order the sa....

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....lant having no liability to discharge the same. In alternative, it is submitted that if the demand is held sustainable, since the Commissioner (Appeals) has already held appellant to be entitled for Cenvat credit in respect of their input services used for providing output services then the Cenvat Credit of Rs. 2,52,614/- for the input services be allowed and the penalty under section 78 be also set aside. Appeal is accordingly, prayed to be allowed. 4. While rebutting these arguments and justifying the order under challenge, it is submitted that the Commissioner (Appeals) has reasonably dealt with every aspects, thereby dropping the demand of the impugned show cause notice for the period prior to 16th May, 2008. It is only the demand, w....

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....ission of the appellant, it was the duty of the Department to prove with cogent evidence that exchange /NCDEX has not discharged the said Service Tax liability. The Commissioner has failed to appreciate the annexures attached to the appeal memo where the books of accounts are showing the Service Tax to have been paid on the transaction charges by NCDEX. In the given circumstances, confirmation of demand of the Service Tax, which has already been discharged by the exchange on whose behalf the appellant had collected those charges and remitted to the exchange, to our opinion, is a patent error on the part of the Commissioner (Appeals). Hence the demand as confirmed by the impugned order is held unsustainable and accordingly, is set aside alon....