2016 (10) TMI 794 - AT - Service Tax

Valuation - commercial construction services - value of free supply of the goods to appellant by their customers for rendering output services - whether value of the materials supplied free of cost to be included in the taxable value or not? - the reliance placed in the decision of Bhayana Builders (P) Ltd v. Commissioner of Service Tax, Delhi 2013 (9) TMI 294 - CESTAT NEW DELHI (LB) - Held that - the decision in the case of Bhayana Builders is applicable to our case as the issue involved is similar. It was held in the case that The value of goods and materials supplied free of cost by a service recipient to the provider of the taxable construction service, being neither monetary or non-monetary consideration paid by or flowing from the service recipient, accruing to the benefit of service provider, would be outside the taxable value or the gross amount charged, within the meaning of the later expression in Section 67 of the Finance Act, 1994 - issue was decided in favor of appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues involved:
Non-inclusion of value of free supply of goods by customers for rendering output services under commercial construction services; contesting show cause notice on merits and limitation; applicability of service tax liability on free goods supplied; interpretation of relevant case laws.

Analysis:

1. Non-inclusion of value of free goods for service tax liability calculation:
The appeal was against an Order-in-Original regarding the non-inclusion of the value of goods supplied free of cost by the appellant's customers for the calculation of service tax liability under commercial construction services. The appellant contested the show cause notice on both merits and limitation grounds. The adjudicating authority confirmed the demands and imposed penalties. However, the Tribunal noted that the issue had already been decided by a Larger Bench in the case of Bhayana Builders (P) Ltd, which held that service tax liability cannot be demanded on the value of goods supplied free of cost by customers. Consequently, the impugned order was set aside in favor of the appellant.

2. Applicability of relevant case laws:
The appellant's Chartered Accountant cited the judgment in Bhayana Builders (P) Ltd case, which was followed by the Tribunal in subsequent cases like Commissioner of Central Excise & Customs v. B M Constructions and M B Chitale Constructions v. Commissioner of Central Excise. These cases supported the appellant's position that service tax liability cannot be imposed on the value of goods supplied free of cost. The Tribunal, after perusing the records, found merit in the appellant's argument based on these precedents and ruled in favor of the appellant, allowing the appeal with consequential relief.

In conclusion, the Tribunal's decision in this case clarified the non-inclusion of the value of free goods supplied by customers for service tax liability calculation under commercial construction services. The judgment relied on established case laws to support the appellant's position and set aside the impugned order, providing relief to the appellant.