SHAKTI SECURITIES Vs. COMMR. OF C. EX., BELGAUM

JUDGEMENT

(1.) THIS appeal arises from the Order -in -Appeal No. 281/2006 -CE dated 19 -9 -2006 confirming the Order -in -Original No. 12/2006 dated 28 -6 -2006, passed by the Assistant Commissioner of Central Excise, Dharwad Division rejecting the refund claim of Rs. 32,376/ -. The appellants had filed refund claim on the ground that they have paid service tax twice for the period from 10 -9 -2004 to 31 -3 -2005. It was pleaded that the main Stock Broker has already paid the service tax and the assessee being a sub -broker had inadvertently paid the tax assuming that their commission received from the main broker also attracts service tax. Both the authorities rejected their plea and held that the payment made by the sub -broker is as per law. The learned Counsel relied on the Tribunals Delhi Bench decision rendered in the case of Vijay Sharma & Company v. Commissioner of Central Excise, Chandigarh [2007 (7) S.T.R. 518 (Tri. - Del.)] wherein it has been held that the sub -brokers who received the commission as agents are not liable to discharge the service tax as the service tax has been discharged by the main Stock Broker. In the case of Unique Investment Centre v. Commissioner of Central Excise, Chandigarh [2007 (8) S.T.R. 632], the Delhi Bench again granted waiver of pre -deposit of the service tax on the same issue. The learned Counsel submits that the service tax discharged by the appellants as sub -broker has not been passed on the customers. Therefore he submits that there is no question of unjust enrichment in the matter. He prays for allowing the appeal.

(2.) THE learned DR opposes the prayer on the ground that the aspect of unjust enrichment has not been examined by both the authorities. She also submits that the assessee did not produce any evidence to show that the main Stock Broker had discharged the service tax liability.

(3.) IN counter, the learned Counsel submits that the evidence was produced before both the authorities from the main Stock Broker as well as from the assessee with regard to the payment of service tax by the main Stock Broker. Therefore this question does not arise for reconsideration.