2018 (12) TMI 1785 - AT - Service Tax

Benefit of N/N. 1/2006-ST dated 01.03.2006 - Commercial or Industrial Construction Service - Construction of Residential Complex Services - Consulting Engineering service - non-inclusion of value of free material supplied by the service recipient for completion of work order provided to the appellant under the category of construction of commercial or industrial construction services - HELD THAT - The matter is no more res integra as the issue has already been decided by Hon ble Supreme Court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. 2018 (2) TMI 1325 - SUPREME COURT where it was held that the value of goods and material supplied free by the service recipient is not to be included in the gross amount charged as per the provisions of section 67 of the Finance Act, 1994. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Whether the appellant wrongly availed the benefit of Exemption Notification No. 1/2006-ST by not including the value of free supplies in the gross value of service?
- Whether the demand of service tax, interest, and penal provisions by the Department is justified?
- Whether the decision in the case of CST vs. Bhayana Builders (P) Ltd. applies to the present case regarding the inclusion of the value of free supplies in the gross amount charged for services?

Analysis:

Issue 1:
The appellant was registered for providing taxable services falling under various categories, including Commercial or Industrial Construction Service and Consulting Engineering Service. The Department initiated investigations suspecting non-payment of due service tax and evasion related to free supplies not included in the gross value for availing exemption. A show cause notice was issued demanding service tax, interest, and penalties. The appellant admitted not including the value of free supplies in the gross amount, leading to the dispute.

Issue 2:
The Department demanded service tax, interest, and penalties based on the investigations and show cause notice issued. The matter was adjudicated, and all charges were confirmed by the learned Commissioner in the original order. The appellant challenged this order before the Appellate Tribunal, arguing against the validity of the demand.

Issue 3:
The appellant's advocate cited the case of CST vs. Bhayana Builders (P) Ltd., where it was held that the value of free supplies by the service recipient should not be included in the gross amount charged by the service provider. The Departmental Representative also agreed with this interpretation. The Tribunal, after considering the arguments and the Supreme Court's decision in the mentioned case, found that the issue was no longer res integra. The Tribunal analyzed the relevant provisions of the Finance Act, 1994, and Explanation 3 to Section 67, concluding that the value of free supplies should not be included in the gross amount charged for services.

In conclusion, the Tribunal set aside the original order, ruling in favor of the appellant based on the precedent established by the Supreme Court's decision in the case of CST vs. Bhayana Builders (P) Ltd. The appeal was allowed, emphasizing that the value of free supplies should not be included in the gross amount charged for services.