2014 (9) TMI 413 - AT - Service Tax

Industrial or Commercial Construction Services - benefit of abatement @67% - Notification No. 15/2004-S.T. dated 10.9.2004 as amended and Notification No. 1/2006-ST dated 01.03.2006. - non inclusion of value of free of cost material supplied by the principle - Held that - Findings of the Adjudicating Authority are incorrect. The value as declared by the appellant for the services rendered by him without inclusion of the value of the free supply of the material is not disputed and the returns filed are accepted by the Dept. The Larger Bench in the case of M/s Bhayana Builders Pvt Ltd 2013 (9) TMI 294 - CESTAT NEW DELHI has categorically ruled in favour of the assessee that cost of free supply of goods for rendering the services is not includable in the assessable value for the discharge of Service tax liability. Such a judicial pronouncement of a Larger Bench has been disregarded by the Adjudicating Authority - Judicial discipline demands that the Adjudicating Authority should follow the pronouncements made by the higher judicial forums without any reservations. - demand set aside - decided in favor of assessee.

Summary

Issues:
1. Service Tax liability on Commercial or Industrial Construction Services
2. Service Tax liability on GTA Services

Analysis:

Issue 1: Service Tax liability on Commercial or Industrial Construction Services
The appeal was against an Order-in-Original (OIO) dated 31.1.2014 concerning the provision of 'Industrial or Commercial Construction Services' by the assessee to a client. The assessee had availed the benefit of abatement @ 67% on the gross amount charged for the services provided, but the value of materials supplied by the client was not included in the taxable value. The Adjudicating Authority found the assessee liable for short payment of service tax amounting to Rs. 57,13,958. The appellant contested this, citing a Tribunal judgment in a similar case. However, the Tribunal held that the value of free materials supplied should not be included in the assessable value for service tax liability, as per the Larger Bench decision in the case of M/s Bhayana Builders Pvt Ltd. The Tribunal set aside the demand for service tax liability on Commercial or Industrial Construction Services, including the value of free materials, and denied abatement, interest, and penalties imposed.

Issue 2: Service Tax liability on GTA Services
The appellant accepted the Service Tax liability on GTA (Goods Transport Agency) services received for transportation of materials. The Adjudicating Authority confirmed this liability along with interest and penalties. The Tribunal upheld this decision, rejecting the appeal filed by the appellant regarding the Service Tax liability on GTA Services. The appellant's liability for GTA Services was confirmed, and penalties were imposed under Section 78 of the Finance Act 1994.

In conclusion, the Tribunal rejected the appeal concerning the Service Tax liability on GTA Services but set aside the demand for Service Tax liability on Commercial or Industrial Construction Services, emphasizing that the value of free materials supplied should not be included in the assessable value for service tax liability. The judgment highlighted the importance of following judicial pronouncements and maintaining judicial discipline in decision-making.