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TMI Blog2011 (8) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... dible in the taxable value. - Held That:- Oncee the recipient of service—SCCL agreed to supply material, cost of the same has to be included in the taxable value or not has to be decided by the Appellate Tribunal on interpretation of agreed clause, etc. No prima facie case for waiver of pre deposit. Writ petition is accordingly dismissed - Writ Petition No. 18315 of 2011 - - - Dated:- 27-8-2011 - A. Gopal Reddy, Raja Elango, JJ. C. Hanumantha Rao and D. Prakash Reddy for the Petitioner A. Rajashekar Reddy, Standing Counsel for Customs and Central Excise for the Respondent ORDER A. Gopal Reddy, J:- The petitioner-contractor a registered dealer in Service Tax Department is engaged in providing service un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. R. No. 44/2009 Adjn. ST, dated April 22, 2009 was issued requiring the petitioner to show cause as to why an amount of service tax of ₹ 13,12,26,103 for the period from June 16, 2005 to March 31, 2008 should not be paid by the petitioner on the value of HSD oil and explosives supplied by the service receiver enclosing bonus amount paid to the petitioner. Another show-cause notice in O. R. No. 140/2009 Adjn. ST, dated October 20, 2009 was issued for the period from April, 2008 to June, 2009 on the same grounds proposing to demand service tax of ₹ 22,71,78,522; interest under section 75 and penalties under sections 76 and 77 of the Act. In spite of replies given to the show-cause notices the adjudicating authority 3rd responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shown separately in the invoice, but has not excluded on the ground that the Supreme Court dismissed the civil appeal filed by the Revenue challenging the decision of the Tribunal in Commissioner v. Shilpa Colour Lab [2009] 14 STR J 163 (SC) did not constitute the binding precedent. The Supreme Court after granting leave dismissed the appeal. Therefore, the finding that the decision of the Supreme Court will not constitute a binding precedent is factually incorrect. Relying on another Tribunal's order the present impugned order is passed, which is contrary to the judgment of the Supreme Court; therefore the same is liable to be set aside. Sri Rajashekar Reddy, learned senior standing counsel for Central Excise, contends that se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior counsel by placing reliance on Notification No. 12/ 2003 S. T., dated June 20, 2003 contends that the goods and materials provided by the service provider to the recipient of service are exempted for the purpose of service tax, which reads as under:- In exercise of the powers conferred by section 93 of the Finance Act, 1994 the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts so much of the value of all the taxable services, as is equal to the value of the goods and materials sold by the service provider to the receipt of service, from the service tax leviable thereon under section 66 of the said Act, subject to condition that there is documentary proof specifically indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ography, if certain goods and materials are consumed, then the value of those goods and materials cannot be included in the value of the services for levy of service tax. Commissioner v. Shilpa Colour Lab [2009] 14 STR J 163 (SC). In the case on hand, the petitioner, who was providing service, received diesel and explosives necessary for carrying out the service from Mis. Sin-gareni Colleries Company Ltd. (SCCL) and did not include their cost in the value for the purpose of payment of service tax. The petitioner/assessee contended that as per Notification No. 12/2003-ST, dated June 20, 2003; as referred above, they are exempted from service tax and it is the case of the petitioner though there was no sale of goods and materials provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l-sets, etc., in the process of manufacturing become part of the complete wagon and lose their identity. It hardly matters how and in what manner the components of the wagon are procured by the manufacturer, so long as the appellant is manufacturing and producing the goods called wagons it is liable to pay duty of excise on the normal value of the wagon. By referring to its earlier judgments in Empire Industries Limited v. Union of India [1987] 64 STC 42 (SC); [1985] 3 SCC 314 and Ujagar Prints v. Union of India [1989] 74 STC 401 (SC); [1989] 3 SCC 488 upheld the orders of the Division Bench of the Calcutta High Court holding that the valuation cost of the free supply items should be included in the manufacturing cost of wagons. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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