9911796707
TMI Blog2012 (7) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... the question raised in this appeal. The appeal is admitted on the above question and taken up for hearing by consent of both the parties to the appeal. 2. The appellant - assessee is inter alia engaged in setting up airseparation plant (equipments for short) at the customers premises. The said equipments are used for manufacturing the oxygen which is ultimately used by the customers in manufacturing their final products. The equipments owned by the assessee are leased to its customers and the assessee enters into an agreement with the respective customer for operating and maintaining the equipments given on lease at a consideration mutually agreed upon by and between the assessee and its customers. 3. The dispute in the present case relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service should not be enhanced by including the cost of electricity supplied free of cost to the assessee by the customers in the course of rendering the services. The assessee contended that the electricity supplied free of cost was not a consideration received by the assessee for rendering the services and, hence, the same was not includible in the taxable service. 6. By an orderinoriginal dated 22nd September 2009, the Adjudicating Authority rejected the contention of the assessee and confirmed the tax demand amounting to Rs. 3.31 crores with interest and penalty. Challenging the aforesaid order, the Revenue filed an appeal and the CESTAT by the impugned order dated 16th November 2011 directed the assessee to deposit Rs. 1 crore for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount charged for the taxable service shall include any amount received towards the taxable service before, during or after provision of such service. (4) Subject to the provisions of subsections (1), (2) and (3), the value shall be determined in such manner as may be prescribed. Explanation. For the purposes of this section, (a) "consideration" includes any amount that is payable for the taxable services provided or to be provided; (b) "money" includes any currency, cheque, promissory note, letter of credit, draft, pay order, travellers cheque, money order, postal remittance and other similar instruments but does not include currency that is held for its numismatic value; (c) "gross amount charged" includes payment by cheque, credit c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen, the value taxable service would be the money actually received plus the money equivalent to the consideration received in kind. In the present case, it is the case of the Revenue that since the electricity is supplied free of cost for maintaining and operating the equipments, the cost of electricity supplied shall form part of the consideration received in kind and, hence, the cost of electricity supplied free of cost is liable to be included in the taxable service. 11. Prima facie, we find it difficult to accept the argument of the Revenue that the electricity supplied free of cost is a consideration in kind received by the assessee from its customers. Admittedly, the electricity supplied free of cost is meant to be consumed in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of cost for the manufacture of oxygen and the said oxygen belongs to the customer, then, it cannot be said that the cost of electricity constitutes the consideration in kind received by the assessee. 14. In these circumstances, we are prima facie of the opinion that the sustainability of the demand raised against the assessee being in doubt, it is a fit case for entertaining the appeal without any predeposit. Accordingly, the impugned order is set aside and the CESTAT is directed to hear the appeal on merits without insisting on any predeposit. We make it clear that our view expressed herein above is a prima facie view and the CESTAT shall pass order on merits without being influenced by this order. All contentions of both the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X
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