2019 (6) TMI 516 - AT - Service Tax

Construction services - inclusion of value of goods/material free of cost - benefit of abatement - whether, the value of goods/material supplied or provided free of cost by a service recipient and used for providing the taxable service of construction or industrial complex, is to be included in computation of gross amount (charged by the service provider), for valuation of the taxable service? - Section 67 of Finance Act. HELD THAT - 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 the goods/materials cannot be added for the purpose of aforesaid notification dated September 10, 2004, as amended by notification dated March 01, 2005. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Whether the appellant is entitled to the benefit of abatement under specific notifications despite receiving free supply materials like cement and steel.
- Whether the value of goods and materials supplied by the service provider should be included in the gross amount charged for the taxable service.

Analysis:
1. Issue 1 - Benefit of Abatement:
The appellant, engaged in construction services, utilized construction material provided by the service recipient in many contracts. The Department contended that since the appellant received free materials, they should not be entitled to the abatement benefit under relevant notifications. A Show Cause Notice was issued, leading to the Adjudicating Authority's decision challenged in the appeal.

2. Issue 2 - Inclusion of Value of Goods in Gross Amount:
The core question was whether the value of goods/materials supplied free of cost by the service recipient should be factored into the gross amount charged by the service provider for valuation of taxable services. The Hon'ble Supreme Court, in a related case, clarified that the value of goods supplied by the service provider should not be considered in determining the gross amount charged under Section 67 of the Finance Act, 1994. The Court emphasized that the value of services should not be influenced by the value of goods supplied free of cost, as it is not part of the contract between the service provider and recipient.

3. Judgment:
The Tribunal, after reviewing the Supreme Court decision, concluded that the issue was settled. Following the Apex Court's ruling, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant. The Tribunal's decision was based on the principle that the value of goods supplied by the service provider should not be included in calculating the gross amount charged for taxable services.