- (1.) The instant writ petition under Articles 226 and 227 of the Constitution of India has been preferred by M/s. LSE Securities Ltd. for issuance of a writ in the nature of certiorari seeking quashment of show cause notice dated 5-10-2012 (Annexure P-5) and further for directing the respondent to refund a sum of Rs. 15,00,000/- along with interest deposited during the course of investigation. Briefly, stated the facts in brief giving rise to the instant lis are that the petitioner is a service provider in the category of Stock Broker Services and registered with the respondent-Department. The department conducted an investigation against the petitioner in the month of May, 2004 alleging nonpayment of service tax on the various charges i.e. transaction charges, stamp duty, BSE charges and SEBI fees etc., which revealed that during the period from December, 2000 to March, 2004, petitioner has recovered transaction charges from its sub-brokers, which were shown as income in the books of account and service tax was paid. However, in addition to the said transaction charges, petitioner also recovered certain other charges in the name of miscellaneous charges, trade guarantee fund (TGF) and Investors Protection Fund (IPF), Stamp Duty, Bombay Stock Exchange (BSE)/National Stock Exchange (NSE) Charges/Exchange transaction charges, SEBI fee and Consumer Protection Fund (CPF) charges, which were neither reflected in the balance sheet nor any service tax was paid in that respect. The department calculated such amount to the tune of Rs. 2,46,85,713/- and service tax not paid by the petitioner was worked out to the tune of Rs. 6,18,761/-. When these facts were pointed out to the petitioner, it deposited a sum of Rs. 15,00,000/- and furnished an information to the department vide letter dated April 29, 2005. Thereafter, petitioner was served with show cause notice dated March 29,2006 raising a demand of service tax of Rs. 16,18,761/- under Section 73 of the Act by invoking the extended period of limitation. Vide the said notice demand of interest under Section 75 of the Act was also raised, besides proposing penal action under Sections 76, 77 and 78 of the Act.
(2.) Though the demand raised by the respondent/department was resisted but the adjudicating authority passed an order in original dated August 23, 2006 whereby the demand raised in the show cause notice was confirmed besides slapping an equal amount of penalty. Aggrieved with the order-in-original, petitioner challenged the same in appeal and Commissioner (Appeals) partially allowed the appeal vide order dated October 29, 2007. He extended the benefit of cum-tax-value under Section 67(2) of the Act and set aside the demand of Rs. 1,04,207/-. Further, Penalty imposed vide order-in-original was also set aside by Commissioner (Appeals), in view of the deposit of amount prior to the service of show cause notice.
(3.) Dissatisfied with an order passed in appeal, petitioner challenged the same by way of appeal before learned Tribunal qua confirmation of demand of service tax. The department also challenged the said order before the learned Tribunal who vide its order dated May 7, 2012 allowed the appeal filed by petitioner and set aside the impugned order passed by Commissioner of Central Excise (Appeals); besides, dismissing the appeal preferred by the respondent/department. Subsequent thereto, petitioner requested the respondent/department for refund of a sum of Rs. 15,00,000/- deposited during the course of investigation vide its letter dated July 4, 2012 (Annexure P-4) but respondent declined the grant of refund rather issued impugned show cause notice dated October 5,2012, which has been challenged through instant petition.;