2018 (7) TMI 696 - AT - Service Tax

Valuation - Commercial or Industrial Construction Service - inclusion of value of goods and materials supplied free by the appellant in assessable value - Section 67 of the Finance Act - whether the value of goods and materials supplied free to the appellant is to be included in the gross amount charged to arrive at total taxable value? Held that - The said issue has been considered in the case of Bhayana Builders (P) Ltd. 2018 (2) TMI 1325 - SUPREME COURT OF INDIA wherein the Apex Court has observed that the gross amount charges does not include value of free goods and materials supplied. The demand cannot sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the value of goods and materials supplied free to the appellant should be included in the gross amount charged to determine the total taxable value.

Analysis:
The appellant, engaged in providing taxable services, did not discharge service tax under the category of Commercial or Industrial Construction Service to a specific entity. The original authority confirmed the demand for service tax, interest, and penalties, which was upheld by the Commissioner (Appeals), leading to this appeal. The appellant claimed to have discharged the service tax liability on service charges received after availing exemption but did not include the value of free goods and materials supplied. The department confirmed the demand only on the portion of the free supplies made to the appellant. The appellant relied on Section 67 of the Finance Act and cited the decision of the Hon’ble Supreme Court in a relevant case to support their argument.

The main issue revolved around whether the value of goods and materials provided free to the appellant should be considered in the gross amount charged for determining the total taxable value. The Hon’ble Supreme Court's decision in the case referenced by the appellant was crucial. The Court observed that the gross amount charged by the service provider does not include the value of goods and materials supplied free of charge by the service recipient. The Court emphasized that the value of taxable services cannot be dependent on the value of goods supplied free of cost by the recipient, as it has no relevance to the services provided. The Court highlighted that the contract value should not be ignored, and the value of free supply goods should not be added to determine the value of taxable services. Based on this reasoning, the Tribunal concluded that the demand was not sustainable and set it aside, allowing the appeal with any consequential relief.

In summary, the judgment clarified that the value of goods and materials supplied free to the appellant should not be included in the gross amount charged to calculate the total taxable value for service tax purposes. The decision was based on the interpretation of relevant legal provisions and the guidance provided by the Hon’ble Supreme Court in a similar case.