JUDGMENT K.S. Jhaveri, J. - By way of this appeal, the appellant has assailed the judgment and order of the tribunal whereby tribunal has dismissed the appeal of the assessee. 2. This court while admitting the appeal on 4-10-2017 framed following substantial question of law :- "Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that commission received from the broker would fall in the category of business auxiliary services and brokerage received on which service tax of Rs. 1,17,822/- is liable to be taxed, penalty and interest, such conclusion is proper? Whether, without mentioned specific clause of business auxiliary services as mentioned under section 65(19), the appellant can be held liable for all the services as mentioned in business auxiliary services for the purpose of Service Tax. As such order passed by all the authorities is legally sustainable." 3. The facts of the case are that the appellant was served with a Show Cause Notices C, No. V (STD) 15/694/BAS/Dem/2008/2006, dated 19-8-2008 wherein they were called upon to Show Cause as to why :- (i) The Service Tax amounting to Rs. 1,17,822/- (Service Tax 1,15,512/- and Education Cess Rs. [2,310/-]) short paid/not paid by them as stated above, should not be recovered from them under proviso to Section 73(1) of the Finance Act, 1994. (ii) Interest should not be recovered from them on the Service Tax amount not paid/short paid under the proviso of Section 75 of the Finance Act, 1994. (iii) Penalty should not be imposed upon them under Sections 76, 77 and 78 of the finance Act, 1994 for contravention of the provisions of Sections 67, 68, 69 and 70 of the Finance Act, 1994 read with Rules 4, 6 and 7 of Service Tax Rules, 1994 with intent to evade payment of Service Tax. 4. The issues came up for our consideration in CWP No. 1914/2013 (Krishan Kumar Gattani and Company vs. Union of India and ors.) and other connected matter decided on 4-10-2017 wherein while considering the matter, this court has held as under :- "14. 4. The issues came up for our consideration in CWP No. 1914/2013 (Krishan Kumar Gattani and Company vs. Union of India and ors.) and other connected matter decided on 4-10-2017 wherein while considering the matter, this court has held as under :- "14. The main contention of counsel for the petitioner is that notices which are issued are not clear under which clause of 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 Ful Chand 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. There is no force in the argument that rendering any activity that fall in Section 65(19)(vii) would classify the appellant''s ''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. 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. 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 (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. They have specifically contended and taken us to the order of Adjudicating Authority paras 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. They have specifically contended and taken us to the order of Adjudicating Authority paras 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 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." 5. In that view of the matter, the order passed in this appeal by the tribunal and any consequential order thereto are quashed and set aside. 6. The issues are answered in favour of the assessee and against the department. 7. The appeal stands allowed.