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2019 (5) TMI 1621 - AT - Service TaxConstruction of Commercial Complex - construction of driveway for the petrol pump, for which admittedly separate contract was issued - taxability - HELD THAT - The said issue is settled in favour of the appellant- assessee by the coordinate Bench of this Tribunal in SHILPA CONSTRUCTIONS PVT. LTD. VERSUS COMMR. OF SERVICE TAX, AHMEDABAD 2010 (6) TMI 175 - CESTAT, AHMEDABAD where it was held that the construction of road does not require payment of service tax - demand set aside. Valuation - Construction of Commercial Complex - material supplied by principle to contract, free of charge, which was admittedly not adjusted in the bill of the appellant contractor - HELD THAT - This issue is also settled in favour of the appellant-assessee by ruling of Hon ble Supreme Court in 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 the goods/materials cannot be added for the purpose of aforesaid notification dated September 10, 2004, as amended by notification dated March 01, 2005 - demand set aside. Appeal allowed - decided in favor of appellant.
Issues involved:
1. Whether the construction of a driveway for a petrol pump is exigible to Service Tax under the category of 'Construction of Commercial Complex'. 2. Whether material supplied by the principal to the contractor, free of charge, needs to be added to the taxable turnover under the classification 'Construction of Commercial Complex'. Analysis: Issue 1: The first issue in the appeal revolves around the taxability of constructing a driveway for a petrol pump under the 'Construction of Commercial Complex' category. The Tribunal referred to a previous case where it was established that construction of a driveway for a petrol pump does not equate to the construction of a road, which is exempt from service tax. The Revenue argued that the driveway was not for public utility but for the commercial interest of the petrol pump owner. However, it was concluded that the construction of a driveway does not require payment of service tax, as it does not fall under the category of constructing a road for public utility purposes. Hence, the issue was settled in favor of the appellant-assessee. Issue 2: The second issue pertains to whether material supplied free of charge by the principal to the contractor should be included in the taxable turnover for 'Construction of Commercial Complex'. The Tribunal cited a Supreme Court ruling where it was clarified that the value of goods/materials supplied free by the service recipient should not be added to the taxable turnover. The Court emphasized that the definition of 'gross amount charged' does not allow for the value of free goods to be added over and above the contract value to determine the value of taxable services. It was highlighted that the value of taxable services should not be influenced by the value of goods supplied free of cost, as it has no relevance to the services provided. Consequently, the appeal was allowed, and the impugned order was set aside in favor of the appellant, granting them consequential benefits as per the law. In conclusion, the judgment by the Appellate Tribunal CESTAT NEW DELHI settled both issues in favor of the appellant-assessee, providing detailed legal reasoning and referencing relevant precedents to support their decision.
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