2008 (7) TMI 51 - AT - Service Tax

Commercial and Industrial Construction Service - According to the Revenue the cost of cement and steel supplied free by the clients also ought to have been included in the gross amount by the service-provider before claiming the benefit of the notification 15/04 - prima facie the appellants were not liable to include the cost of cement and steel in the gross value charged - waiver of pre- deposit and stay of recovery granted

Summary

Issues Involved:
Interpretation of the expression 'used' in a notification regarding service tax liability.

Detailed Analysis:
The case involved a dispute over the interpretation of the term 'used' in a notification related to service tax liability for Commercial and Industrial Construction Service. The lower authorities had demanded a significant amount of service tax and imposed a penalty on the appellants. The controversy centered around whether the cost of cement and steel, supplied free by clients, should be included in the gross amount charged by the service-provider. The appellants had paid service tax based on an amount excluding the cost of these materials, citing a notification that allowed for such exclusions. However, an amendment to the notification added an Explanation stating that the gross amount charged should include the value of goods and materials supplied or used by the provider of the construction service.

The crux of the argument revolved around the interpretation of the term 'used' in the Explanation. The learned counsel for the appellants contended that 'used' should be understood as "supplied and used by the service-provider," while the JCDR argued for a different interpretation, suggesting it could mean "supplied by the service-recipient and used by the service-provider." The Tribunal analyzed the wording of the Explanation and noted that the phraseology did not use 'supplied, provided, or used' but rather 'supplied or provided or used,' indicating a distinction. The Tribunal leaned towards the interpretation proposed by the appellants' counsel, aligning it with the legislative intent behind the relevant statutory provision.

Ultimately, the Tribunal accepted the interpretation that 'used' should be construed as "supplied and used by the service-provider" in the context of the case where cement and steel were supplied by the service recipient and used by the appellants in providing the taxable service. This interpretation led to the conclusion that the appellants were not liable to include the cost of cement and steel in the gross value charged for determining the service tax liability under the notification in question. Consequently, the Tribunal granted a waiver of pre-deposit and a stay of recovery concerning the tax and penalty amounts.