2015 (9) TMI 532 - AT - Service Tax

Demand of service tax - Inclusion of value of material supplied free of cost - Overlapping of periods - Held that - Mere overlapping of certain period is no evidence that the service tax has been demanded on the same transactions. Therefore it will be open for the appellant to take this plea during de novo adjudication to show that there is overlapping of transactions inasmuch as certain transactions have been included in both the show cause notices for charging of service tax. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Inclusion of value of material supplied free of cost in assessable value for service tax calculation.
2. Classification of service under works contract service and entitlement to abatement.
3. Overlapping periods in Show Cause Notices.
4. Remand of the case for de novo adjudication based on CESTAT judgment.

Issue 1:
The appeal was filed against an order confirming a service tax demand due to the non-inclusion of the value of material supplied free of cost in the assessable value. The appellant argued that based on a CESTAT judgment in another case, the value of free supply should not be included for duty liability or abatement purposes. Additionally, the appellant claimed entitlement to benefits under specific notifications and rules for works contract services. The Tribunal acknowledged the arguments and decided to remand the issue for fresh adjudication based on the cited judgment.

Issue 2:
The appellant contended that the service should be classified under works contract service from a certain date, even though they had initially paid service tax under a different category with abatement. The Tribunal noted that this argument was not raised at the primary level and refrained from giving a view on it. However, they clarified that the appellant could raise this legal plea during the fresh adjudication process. The issue was remanded to the primary adjudicating authority for further consideration in line with the CESTAT judgment.

Issue 3:
Regarding the overlapping periods in two Show Cause Notices, the Tribunal clarified that mere overlapping did not prove that service tax had been demanded for the same transactions. They allowed the appellant to present this argument during the new adjudication to demonstrate the overlapping transactions. The Tribunal emphasized that any legal plea could be raised during the fresh adjudication process.

Issue 4:
After considering the contentions from both sides, the Tribunal agreed to remand the case to the primary adjudicating authority for de novo adjudication based on the CESTAT judgment in the case cited by the appellant. They directed the authority to follow the principles laid down in the judgment and provide the appellant with an opportunity to present their case. The decision to remand the case was made to ensure a thorough review of the issues in light of the relevant legal precedent.

This detailed analysis of the judgment covers the issues raised, the arguments presented by both parties, and the Tribunal's decision to remand the case for fresh adjudication based on the CESTAT judgment.