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TMI Blog2014 (8) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1994 and these free supplies do not comprise the gross amount charged under Notification no. 15/04-ST including the explanation thereto as introduced by Notification 4/05-ST. Therefore, we hold that these demands are not sustainable at all. Demand has been confirmed for the value of material supplied by the customers under the category of Works Contract Service. As per Notification 23/09 dated 07.07.2009 shall not be included where works has been commenced prior to issuance of the said Notification. As submitted by the counsel for the appellant that out of 10 contracts, in 3 contract work has been commenced before 07.07.2009 where service tax on free material supplied is not leviable. This fact is to be verified from the records. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,15,595/- along with interest and penalties under Section 76, 77 and 78 of the Finance Act, 1994 along with an application of stay. 2. After hearing at length, we find that appeal itself can be disposed of at this stage. Therefore, with the consent of both sides, appeal as well as stay application are taken up for final disposal. 3. The facts in brief are that : a) The demand of service tax under the category of Commercial and Industrial Construction service, of ₹ 1,48,74,141/- was confirmed on account of material supplied by the customers during the period October 2007 to March 2012. b) A demand of service tax of ₹ 9,90,50,094/- under the category of Works Contract Service have been confirmed on the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that a question of including value of materials supplied by the service recipient under composition scheme of service tax of Works Contract Service would arise only after the amendment vide Notification 23/09-ST dated 07.07.2009 and it will not be apply for the contracts commenced prior to 07.07.2009. Therefore, out of 10 contracts, for which demand has been confirmed, three contracts were commenced prior to 07.07.2009. For the remaining contracts, it is submitted that once the service tax is paid under the composition scheme, value of materials supplied by the service recipient needs to be included and that works out ₹ 1,29,71,747/-, against which the appellant has already paid a sum of ₹ 1.7 crores. Therefore, same may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. 5. On the other hand, ld. AR strongly opposed the contention of the counsel and submits that the appellant were given ample opportunity by the Adjudicating Authority to defend their case and they failed to produce the relevant document/agreement before the Adjudicating Authority for examination. Therefore, the Adjudicating Authority has passed the order on merits and need not be remanded back to the Adjudicating Authority. 6. Considered the submissions. 7. In this case, a demand of ₹ 1,48,74,141/- has been confirmed on the value of materials supplied by the customers. The issue came up before the Larger Bench of the Tribunal in Bhayana Builders (P) Ltd. (supra) wherein it was held that value of gods and material suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We further find that demand has been confirmed on the basis of figures of Profit Loss Account during October 2007 to March 2012 under the category of Commercial and Industrial Construction service, Erection, Commissioning or Installation Service. In the impugned order, no classification has been provided and it has not been specified why the service tax is payable under these categories. Moreover, the value of service tax paid by the appellant is shown in Profit Loss Account figures in the gross value of service provided. Further, till 31.3.2011, the service tax was payable on realisation basis. In these circumstances, the Adjudicating Authority requires verification/examination of the documents to ascertain the correct liability of se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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