JUDGMENT K.S. Jhaveri, J. - In both these petitions common question of law and facts are involved hence they are decided by this common order. 2. By way of these petitions, the petitioners have assailed the judgment and order of the Commissioner (Appeals) whereby the appeals preferred by the petitioners were dismissed. 3. The facts of the case are that the appellants are working as a Finance Broker. The nature of work is simply that he provides a common plateform to the persons who temporarily have the surplus funds and intend to lend money to the person who needs finance for their business temporarily. In this process Appellants find out customers who desire to take loan on the basis of interest and as soon as customer demands money he is introduced to money lenders and after settlement of terms of conditions a cheque for the borrowed money is issued by money lender and is given by the Appellants to the borrower. At the same time the borrower issues a cheque against payment of interest to the money lender as well as a cheque for brokerage to the Appellants. It would be appreciated that since the brokerage is received from the borrower of money who is certainly not the receiver of the service and further, Appellants is not working as an agent/representative either of money lender or borrower. The Appellants were always under a bona fide belief that they are not covered by any of the categories of services defined under Finance Act, 1994 and in view of this fact they neither obtained registration with the Central Excise Department nor did they pay any amount of Service Tax on the brokerage received by the Appellants from the borrower of the money. 3.1 It may not be out of time to submit here that another person namely; Shri R.A. Gattani of Bhawan, Gangori Bazar, Jaipur who too was engaged in the same activities as are involved in the present case, was also working as a broker in between the moneylender and money borrower for which he was receiving considerations from the money borrower. The department proposed to cover said Shri R.A. Gattani as a commission agent under Business Auxiliary Services and issued to him a Show Cause Notice as early as on 15-5-2007 for demand of Service Tax of Rs. The department proposed to cover said Shri R.A. Gattani as a commission agent under Business Auxiliary Services and issued to him a Show Cause Notice as early as on 15-5-2007 for demand of Service Tax of Rs. 692893/- alleged to have been evaded by said Shri R.A. Gattani during the same period as involved in the present case of the Appellants i.e. 1-4-2003 to 15-6-2005. The said Show Cause Notice dated 15-5-2007 had culminated into Order-in-Original No. 11/Dem/ST/2007/1928, dated 12-8-2008 and the proceedings initiated against said Shri R.A. Gattani by issuing the said Show Cause Notice dated 15-5-2007 were withdrawn. A copy of the said Order-in-Original No. 11/Dem/ST/ 2007/1928, dated 12-8-2008 is enclosed for ready reference. 3.2 It would be appreciated that since the issue/facts and circumstances and the period involved in the said Order-in-Original No. 11/Dem/ST/2007/1928, dated 12-8-2008 was the same, the said act of the then Learned Assistant Commissioner in withdrawing the proceeding further confounded the Appellants bona fide belief that they were not liable to pay any Service Tax on the considerations received by the Appellants from the borrower of money. 3.3 Further there is no dispute about the fact that vide Show Cause Notice dated 15-52007 the activities undertaken by said Shri Gattani were proposed to be covered under the Business Auxiliary service as a commission agent. However there is no dispute about the fact that the department failed to cover the said activities under the Business Auxiliary service as a commission agent as the said Show Cause Notice dated 15-5-2007 was withdrawn by the department and it was clearly held that the activities undertaken by said Shri Gattani could not be treated as that a Commission Agent. On the failure of the department to cover the said activities as Commission Agent under Business Auxiliary Service, the department suddenly changed their stand and a Show Cause Notice was issued to the Appellants in the present case on 5-6-2008 proposing to cover the activities undertaken by the Appellants which were quite the same as had been undertaken by Shri R.K. Gattani under sub-clause (ii) of the definition of Business Auxiliary Services i.e. Promotion and Marketing of Services. The story did not end here. The story did not end here. While adjudicating the said Show Cause Notice dated 5-6-2008 the Learned Adjucating Authority i.e. Additional Commissioner Central Excise Traversed beyond the Show Cause Notice and concluded that the activities undertaken by the Appellants are covered under clauses (ii) (iii) (iv), and (vii) of Business Auxiliary services which was never the case of the department in the Show Cause Notice. 4. One of the identical assessee who happens to be incidentally brother of the petitioner, this Court in a writ petition filed by one Sh. R.A. Gattani (CWP No. 4953/2007), decided on 16-7-2007 held as under :- 4. It goes without saying that before proceeding with the assessment pursuant to the notice dated 15-5-2007, the objection of the petitioner that he does not fall under the category of "Business Auxiliary Service" and all other objections relating thereto shall be decided. Needless to say that if the petitioner is aggrieved by the assessment order of the Assistant Commissioner, Central Excise Division-I, Jaipur, the petitioner shall be free to challenge the same in appropriate proceedings in accordance with law. 5. Considering the observations made by the division bench in that petition, the adjudicating authority has passed the order against the petitioners. 6. Counsel for the petitioners have taken us to the auxiliary service which reads as under :- ''Business auxiliary service'' means any service in relation to - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of services provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or with effect from 16-6-2005 the following explanation added to sub-clause (iv). [Explanation. - For the] purpose of this sub-clause, "inputs" means all goods or services intended for use by the client. (v) production of goods on behalf of the client (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, Inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision. and includes services as a commission agent, but does not include any information technology service and any activity that amounts to "manufacture" within the meaning of clause (f) of section 2 of the Central Excise Act, 1944. 7. He further contended that specific case of the petitioners are that they are not covered, the petitioners were held to be covered under clause (ii, iii, iv and vii). The clause (vii) was never in existence for the period for which the notice was issued. 8. He has also taken us to the details of notice which reads as under :- Office of The Assistant Commissioner, Central Excise Division-1, Sector-10, Vidhyadhar Nagar, Jaipur C. No. : IV(15)1/Prev/Div-I/2007/87 Date : 3-1-2007 To, M/s. Narain Prasad Gattani 2126, Gattani House, Gangori Bazar, Jaipur Sub : Non payment of Service tax on the amount received towards taxable services provided - reg. Dear Sirs, Vide Notification No. 7/2003-S.T., dated 20-6-2003, any service provided by a Commission Agent with regards to promotion and marketing of services become taxable under Service Tax w.e.f. 1-7-2003 under category of ''Business Auxiliary Service'' and Service tax was payable on the gross amount charged by a Commission Agent from their clients. It is learnt that you have not paid Service Tax on the gross amount charged by you from your clients during the period from 1-7-2003 to 15-6-2005, while it was chargeable and payable under section 68 of the Finance Act. Therefore, you are requested to provide the Balance Sheet for the year 2003-04, 2004-05 and 2005-06 along-with copies of Income tax return for the said years, to the undersigned immediately within 3 days of receipt of this letter otherwise suitable action will be taken against you as provided under law. Yours faithfully, Sd/- Assistant Commissioner 8.1 He has also pointed out the notice dated 5-6-2008 relevant part of which reads as under :- 4. On the basis of examination of documents provided by the noticee, it is found that they have received Rs. 84,35,120/- on account of Brokerage during the period from 1-7-2003 to 15-6-2005 but did not paid Service tax to the tune of Rs. 6,92,893/- (Service Tax Rs. 686211/- + Education Cess Rs. 6682/-) on this taxable amount received by them from their clients. Therefore Rs. 6,92,893/- as Service tax along with Interest is recoverable from them as detailed below. 84,35,120/- on account of Brokerage during the period from 1-7-2003 to 15-6-2005 but did not paid Service tax to the tune of Rs. 6,92,893/- (Service Tax Rs. 686211/- + Education Cess Rs. 6682/-) on this taxable amount received by them from their clients. Therefore Rs. 6,92,893/- as Service tax along with Interest is recoverable from them as detailed below. 8.2 He has also taken us to the order dated 31-8-2009/1-9-2009 more particularly Para 5.5. which reads as under :- 5.5 In the matter, I find that the noticee is engaged in the business of finance broking. The noticee is professionally skilled firm with required personnel and technical resources and they are specialized in promotion and marketing of financial services, customer care services on behalf of money lender/borower and auxiliary to the same. As soon as, any customer who desire to take loan on the basis of interest, they introduced these prospective customers to the moneylenders and after settlement of terms and conditions, the borrowed money cheque is issued by the moneylenders and is given by noticee to the borrower. However, at this time, the borrower gives a cheque for interest payable and the noticee hands it over to the moneylender. They maintain records of the transaction and obtain cheques from the borrower in order to pay the money back to the moneylender in time. As such, the noticee received consideration (brokerage) for the service provided as above from the borrower as per arrangement. In such a way, the moneylenders are the recipients of the services as they are ultimate persons whose businesses are promoted. The receipt of brokerage/commission from the borrower is mere arrangement and sogregated from the amount of interest at the time of payment thereof. Thus, they facilitate to the moneylenders in the promotion and marketing of their financing business by way of colleting cheques from the customers in order to pay the money back to the moneylenders, also collect cheque of interest amount on behalf of the moneylenders, maintaining the records etc. There is no warrant to say that services rendered should benefit exclusively the noticee and no benefit should accrue to the moneylender. In case sale of goods, it can be said both the buyer and seller are beneficiaries. Similarly in relation to any service both the provider and recipient are beneficiaries. There is no warrant to say that services rendered should benefit exclusively the noticee and no benefit should accrue to the moneylender. In case sale of goods, it can be said both the buyer and seller are beneficiaries. Similarly in relation to any service both the provider and recipient are beneficiaries. The tie up between borrower and the moneylender definitely benefits the noticee and at the same time it benefits the finance company more. Shri Mahesh Prasad Gattani, Employee and Authorized Person of the noticee has also confirmed these facts in his voluntary statement dated 5-2-2007 tendered under Section 14 of the Central Excise Act, 1944 that they their firm is doing business of finance broking in which fund is made available to borrowers from the moneylenders and they made arrangement of transfer of cheques on behalf of the clients and in consideration they received brokerage. For the sake of argue if the contention the notice is accepted that they is not promoting/marketing the business of moneylenders, than what is the need of collecting cheques of principal and interest amount on behalf of the moneylenders and what is the need of maintaining records of transactions on behalf of the moneylenders and what is the need of maintaining records of transactions on behalf of the moneylenders when they contended that they are not providing any services to moneylenders and they are not in between of the moneylenders and borrowers after contract. I observe that it is because of terms and conditions among moneylender, borrowers after contract. I observe that it is because of terms and conditions among moneylender, borrower and them though it is in written or not. Hence, I find that the services provided by the noticee to their clients (both moneylenders and borrowers) are covered under the category (ii), (iii), (iv) and (viii) of "Business Auxilliary Service" as defined under Section 65(19) of the Finance Act, 1944, w.e.f. 1-7-2003. 8.3 However, Mr. Hence, I find that the services provided by the noticee to their clients (both moneylenders and borrowers) are covered under the category (ii), (iii), (iv) and (viii) of "Business Auxilliary Service" as defined under Section 65(19) of the Finance Act, 1944, w.e.f. 1-7-2003. 8.3 However, Mr. Kasliwal, counsel for the petitioner relied on the following observations of Commissioner (A) : 5.13 In view of above discussions, I hold that the service tax is very much applicable on subject amount of commission/brokerage received by the noticee during July, 2003 to 15 June, 2005 on account of promoting and marketing the financial services, customer care services and, other incidental and auxiliary services to the moneylenders and providing services to borrowers and thus, liable to service tax under the category of "Business Auxiliary Service" in view of subclause (ii), (iii), (iv) and (vii) of Section 65(19) of the Finance Act, 1944. It is established from the records that the noticee had provided taxable services during the said period under "Business Auxiliary Service" suppressed the facts from the department by not brought the material facts into the knowledge of the department, by not filing ST-3 return with intent to evade service tax and contravened the provisions of Section 68, 69 and 70 of Finance Act, 1994 read with Rule 4, 6 and 7 of the Service Tax Rules, 1994. From the above facts, it is clear that the service tax amounting to Rs. 692893/- is correctly recoverable from the noticee along with interest in the "Business Auxiliary Service" category as discussed above under the provisions of Section 73(1) and 75 of the Finance Act, 1994. 5.14 Accordingly, I pass the following order :- ORDER 1. I confirm the demand of Service tax amounting to Rs. 692893/- and order for recovery of the same from M/s. Narain Prasad Gattani, Jaipur under proviso to Section 73(1) of the Finance Act, 1994. 2. I order to recovery of interest, at applicable rate, on the amount of service tax confirmed of Rs. 692893/- from the noticee under Section 75 of the Finance Act, 1994. 3. I impose a penalty of Rs. 100/- per day upto 17-4-2006 and w.e.f. 18-4-2006 Rs. 2. I order to recovery of interest, at applicable rate, on the amount of service tax confirmed of Rs. 692893/- from the noticee under Section 75 of the Finance Act, 1994. 3. I impose a penalty of Rs. 100/- per day upto 17-4-2006 and w.e.f. 18-4-2006 Rs. 200/- per day during which such failure continues or at the rate of 2% of the amount of service tax due, per month, which ever is higher, till the date of actual payment of outstanding service tax, subject to maximum of Rs. 692893/-, upon the noticee, under Section 76 of the Finance Act, 1994. 4. I impose a penalty of Rs. 1000/- upon the noticee under Section 77 of the Finance Act, 1994; and 5. I also impose a penalty of Rs. 692893/- upon M/s. Narain Prasad Gattani, Jaipur under Section 78 of the Finance Act, 1994. 8.4 Counsel for the petitioner has also relied upon the decision of Gujarat High Court in E.I. Dupont India Pvt. Ltd. vs. Union of India - 2014 (305) E.L.T. 282 (Guj.). 9. Now, Mr. Kalavatiya, Counsel for the respondent also relied on Para 5.6 order passed by Assistant Commissioner also which reads as under : 5.6 The CBEC has also clarified taxable service under the category of "Business Auxiliary Service" in Service Tax Circular No. 59/8/2003, dated 20-6-2003 for guidance of service providers. The relevant portion is as under :- "While it is not possible to give an exhaustive list of business auxiliary service, the following are illustrations of services that are covered under this category viz. Evaluation of prospective customers, processing of purchase orders, customer management, information and tracking of delivery schedules, accounting and processing of transaction, operation assistance for marketing, formulation of customer service and pricing policies, managing, distribution and logistics. The services provided in relation to getting a customer, verification if prospective customer, processing of purchase order etc. would also covered under service tax, as the law specifically provides for inclusion of such services as business auxiliary support services." From the illustration given above, it is clear that the noticee was rendering taxable service under the category of business auxiliary services. They actually sources customer for moneylenders for loan. would also covered under service tax, as the law specifically provides for inclusion of such services as business auxiliary support services." From the illustration given above, it is clear that the noticee was rendering taxable service under the category of business auxiliary services. They actually sources customer for moneylenders for loan. They arrange loan for the customer after contacting moneylenders and get arrange the meeting for terms and condition, collecting the cheques from the borrowers in order to pay money back to the moneylenders, maintaining records of transactions etc. were regular features and the noticee was getting considerable amount from the borrower for services rendered to both borrowers and moneylenders as per mutual arrangements/understanding of both of them. Thus, the scope of sub-clause (vii) is very wide and it is not possible to give an exhaustive list of Business Auxiliary Services. However, it covers such auxiliary/support services which are essential for running of the firm/company or any organization etc.; Thus, those services which are also incidental or ancillary to other business auxiliary services specified in clause (i) to (vi), will get covered. These includes collection or recovery of cheques on behalf of client management or supervision which is incidental or auxiliary to activities specified in sub-clause (i) to (vi) above. These entities get commission/brokerage based on the amount received/recovered. 10. He contended that the authority has travelled beyond the notice. It has also been submitted that the appellate authority in its order more particularly, Assistant Collector held as under : ORDER In view of the above, I withdraw the proceedings initiated against M/s. R.A. Gattani, 2126 Gattani House, Gangori Bazar, Jaipur vide show-cause-notice No. V(15) ST/Div.I/07/2883, dated 15-5-2007. 11. The proceedings vide order dated 12-8-2008 which was basis of the judgment of the Division Bench whereby the order was passed for admission. It will not be out of place to mention that strong reliance which has been placed by counsel for the respondent after admission which is already part of record dated 27-3-2012 which reads as under :- After hearing learned counsel appearing on behalf of the parties, we are of the considered opinion that when statutory remedy of appeal is available, all the questions pertaining to the factual matrix and mixed questions of facts and law have to be raised before the concerned authority. Appeal is statutory, efficacious, alternative remedy available to the petitioners. Appeal is statutory, efficacious, alternative remedy available to the petitioners. We do not find that in such cases we should readily exercise writ jurisdiction. In view of availability of efficacious alternative remedy of appeal, we decline to interfere in the writ petitions in the orders passed by the adjudicating authority. Various facts have been disputed. Determination of such facts can be made by the concerned authority in appeal. In view of aforesaid discussion, we are not inclined to exercise writ jurisdiction in the present matter as efficacious, alternative remedy of filing statutory appeal is available to the petitioners. However, as the period of limitation to file appeal has been expired as notices against admission were issued though the writ petitions were not admitted, we give 30 days time to the petitioners to file appeal before the appellate authority. As agreed by the learned counsel for the parties, the appeal so filed shall be treated within the period of limitation and adjudicated on merits in accordance with law by the appellate authority. 12. However, this Court while admitting the matter on 15-5-2014 has admitted the matter after considering the reply filed by the respondent and observed as under : The counsel for the appellant has referred the case of M/s. R.A. Gattani (Writ Petition No. 4953/2007), decided on 16-7-2007 as well as order of Deputy Commissioner dated 12-8-2008 in furtherance thereof. 13. It was also pointed out by Mr. Kalavatiya that the Commissioner (Appeals) in the order dated 15-1-2013 observed as under :- In the present case the appellant was providing loan to the customers on the condition of payment of interest to the moneylenders. As soon as, any customer demands money, he is introduced to the moneylenders and after settlement of terms and conditions; the borrowed money cheque is issued by the moneylender and is given by the appellant to the borrower. However, at this time, the borrower gives a cheque for interest payable and the appellant hands it over to the moneylender. The appellant maintain records of the transactions and obtain cheque from the borrower in order to pay the money back to the moneylender. As such, the appellant received consideration (brokerage) for the service provided as above from the borrower as per arrangement which is nothing but part of interest, as it promotes and markets the service of moneylender. The appellant maintain records of the transactions and obtain cheque from the borrower in order to pay the money back to the moneylender. As such, the appellant received consideration (brokerage) for the service provided as above from the borrower as per arrangement which is nothing but part of interest, as it promotes and markets the service of moneylender. In such a way, the moneylender is the recipient of the service as he is the ultimate person whose business is promoted. The receipt of brokerage from the borrower is mere arrangement and segregated from the amount of interest at the time of payment thereof. Thus, the service provided by the appellant are covered under the definition of promotion or marketing of services which is taxable w.e.f. 1-7-2003. Therefore, the services provided by the appellant has correctly been classified under business auxiliary Services, which is taxable w.e.f. 1-7-2003. Hence the appellant is liable to pay service tax amounting to Rs. 7,67,143/-. 14. The main contention of Counsel for the petitioner is that notices which are issued are not clear under which Clause of [Section] 65(19), they are covered and the authority has failed to consider that the proceedings against the identically situated persons by the Tribunal by another Assistant Commissioner and decision of the Bombay Tribunal in Fulchand Tikamchand vs. Commissioner of Central Excise and Cus., Nagpur -2016 (42) S.T.R. 1063 (Tri.-Mumbai) identically situated case. No doubt it is subsequent to the adjudication of the petitioner are entitled to benefit of the same judgment. 8. It is seen from the description of the activity that the appellant does not enter into any contract, written or implied, with either the financier or the borrower; nor is there any responsibility cst upon the appellant in the event of default on the part of financier or the borrower. Accordingly, the appellant fails the test of description as agency or agent for classification as commission agent under Section 65(19) of Finance Act, 1994. Theree is no force in the argument that rendering any activity that fall in Section 65(19)(vii) would classify the appellants ''commission agency'' when Section 65(19)(vii) can be invoked only in relation to the preceding subcategories. 9. The case laws relied upon by the adjudicating authority stand on a different footing inasmuch as the providers therein received commission from clients whose commercial outputs were placed with final consumers. 9. The case laws relied upon by the adjudicating authority stand on a different footing inasmuch as the providers therein received commission from clients whose commercial outputs were placed with final consumers. The appellant, on the other hand, receives commission from the borrower who does not have either a product or a service to place in the market. The consideration is, thus, not connected with the sale of a product or service belonging to the person who makes over the consideration. The appellant, therefore, does not find fitment in Section 65(19)(vii) as provider of ''business auxiliary service''. 15. More particularly, when SLP preferred against the same order came to be dismissed in Commissioner vs. Fulchand Tikamchand - 2017 (51) S.T.R. J36 (S.C.). 16. He also contended that clause (vii) is invoked or introduced w.e.f. 16-6-2005 thereafter in view of clause (vii), they are paying the tax. On the ground of delay ground (d) of the writ petition, he contended that notice was time-barred and in view of decisions which are referred in ground (e) reads as under :- 2006 (201) E.L.T. 513 (S.C.) 2009 (241) E.L.T. 481 (S.C.) 1989 (40) E.L.T. 276 (S.C.) 1989 (43) E.L.T. 195 (S.C.) 1994 (74) E.L.T. 9 1995 (75) E.L.T. 721 2001 (42) R.L.T. 508 (Tri.) = 2001 (130) E.L.T.0348 (Tri.-Del) 2001 (131) E.L.T. 662 2001 (135) E.L.T. 719 2001 (138) E.L.T. 381 2002 (148) E.L.T. 1124 (Tri.-Bang.) 2005 (184) E.L.T. 61 (Tri.-Chennai) 2003 (154) E.L.T. 500 (Tri.-Bombay) 17. The Adjudicating Authority has to consider the same which he failed to consider. 18. The judgment in the case of the another assessee is produced on record but since appeal was pending, we are not considering the judgment of 27-2-2015. 19. Counsel for the respondent Mr. Kalavatiya and Mr. Pathak has taken us to the order of Adjudicating Authority that Clause (ii) will cover the assessee and they are not only programmer but collecting tax and other services provided by them. 20. They have contended that the fact of order in 2012 was never disclosed and the factum of this petition or adjudicating this order was never shown to the Commissioner (Appeals) who has allowed the appeals on 27-2-2015. 21. In that view of the matter, the petitioner is required to be relegated to the alternative remedy before the Tribunal. 20. They have contended that the fact of order in 2012 was never disclosed and the factum of this petition or adjudicating this order was never shown to the Commissioner (Appeals) who has allowed the appeals on 27-2-2015. 21. In that view of the matter, the petitioner is required to be relegated to the alternative remedy before the Tribunal. They have specifically contended and taken us to the order of Adjudicating Authority Para 5.5 to 5.13 and contended that view taken by the Adjudicating Authority and Appellate Authority as referred above is required to be affirmed and the petition deserves to be dismissed. 22. We have heard counsel for the parties. 23. Before proceeding further, it will not be out of place to mention that in view of the fact that 2008 proceedings was dropped and the same was referred by the Division Bench while admitting the matter, we are not dismissing the writ petition on the ground of alternative remedy after 4 years least it will loose faith of the people in the judicial system. Instead, we have given chance to the Counsel for the respondent to refer the matter back to the Commissioner but they have not inclined to go before the Commissioner (Appeals). They have insisted instead of relegating to prefer an appeal before the Tribunal and having admitted the matter, we have proceeded the matter on merits. 24. The Court''s suggestions to again remand the matter was not acceptable to Counsel for the department for the reasons best known to them. They have opted decision on merits. Therefore, the matter on merits. The proceedings of 16-5-1990, we are of the considered opinion that programmer services will not be covered under clause (ii) and Adjudicating Officer was not clear under which clause they are covered. 25. In that view of the matter, the order of the Adjudicating Authority and the Appellate Authority are required to be quashed and set aside. 26. In view of the decision of Bombay Tribunal which was confirmed by the Supreme Court in SLP and subsequent amendment in clause (vii), it is clearly established that the department itself thought it proper to amend the clause. 27. In that view of the matter, the petitions deserve to be allowed and the same are allowed. The order of the Adjudicating Authority and Appellate Authority are quashed and set aside. The Rule is made absolute.