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TMI Blog2017 (9) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... or to 16/6/05 is not sustainable at all - the demand for the period prior to 01.06.2007 pertaining to the mining services set aside. Valuation - Free supply of diesel by the customers - Held that: - similar issue decided in the case of M/s Bhayana Builders (P) Ltd. & Others Versus CST, Delhi & Others. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], where it was held that The value of goods and materials supplied free of cost by a service recipient to the provider of the taxable construction service, being neither monetary or non-monetary consideration paid by or flowing from the service recipient, accruing to the benefit of service provider, would be outside the taxable value or the gross amount charged, within the meaning of the later expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard Shri Sanjay Grover, Advocate for the appellant and Ms. Neha Garg, DR for the respondent. 4. After considering the above statement, it appears that the mining service was made taxable w.e.f. 01.06.2007. After this date, the department has accepted the services provided by the appellant as mining services. Hence, prior to 01.06.2007, the same cannot subject to service tax under a different service. 5. In this regard, it may be mentioned that the issue has come up before the Tribunal in the case of National Construction Company Vs. CCE Jaipur - 2014 (34) STR 739 (Tri-Del) wherein the Tribunal has relied on the ratio laid down by the Hon ble High Court of Orissa in the case of Coal Carriers Vs. CC - 2011 (24) STR 395 (Ori.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it would be absurd to classify the appellant s activity during the period prior to 16-62005 as cargo handling service and charge Service Tax on the entire remuneration being received by the appellant on that basis. Therefore, Service Tax demand for the period prior to 16-6-2005 is not sustainable at all. In this regard, the judgment of the Tribunal in the case of Gajanand Agarwal v. CCE, BBSR (supra) cited by the learned DR is not applicable to the facts of this case as in that case loading of the coal into the railway wagons was also involved. 6. In view of the above, we set aside the demand for the period prior to 01.06.2007 pertaining to the mining services. 7. The next issue is pertaining to the demand on the free supply o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the legislative competence of State, the value of goods sold would thus be beyond the legislative competence of Parliament for levy of tax on such sale; consequently could not also constitute the value of taxable services. Ld. Counsel placed reliance on the judgment in M/s. Gannon Dunkerley and Co. and Others v. State of Rajasthan and Others - (1993) 1 SCC 364; and State of Andhra Pradesh and Others v. Larsen Toubro Limited and Others - (2008) 9 SCC 191, to buttress this contention. 8. This issue is also thus decided in favour of the appellant. 9. In the result, the impugned order is set aside and appeal filed by the appellant is allowed as stated above. [Dictated and Pronounced in the open court] - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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