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TMI Blog2017 (10) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... eration or otherwise should be added. Therefore it is clear that whether the goods used by the service provider or otherwise supplied by the service recipient free of cost, value of all the goods should be included to arrive at the gross value of works contract - the value of free supply material also be added in the gross value of works contract, therefore the demand is sustainable on merit. Extended period of limitation - penalty u/s 78 - Held that: - the appellant having knowledge about the inclusion of free supply material did not include the same and also suppressed the said fact from the department. It is also observed that they did not disclose the value of the free supply material in their ST-3 returns. This is not the case where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Vs. Commissioner of C.Ex. & Service Tax, Jaipur-I - 2016 (41) STR 642 (Tri.-Del.) (ii) Pratibha Constructions Engineers & C (I) P. Ltd. Vs. C.C.E. Kolhapur - 2016 (42) STR 856 (Tri.-Mumbai) (iii) Jaiswal Builders & Contractors Vs. Commi8ssioner of C.Ex., Nagpur - 2016 (45) STR 440 (Tri.-Mumbai) (iv) Millennium Constructions Pvt. Ltd. Vs. Commr. of S.T. New Delhi - 2015 (39) STR 477 (Tri.-Del.) (v) Era Infra Engineering Ltd. Vs. U.O.I. - 2008 (11) STR 3 (Del.) (vii) Chemex Engineers Vs. Commissioner of Service Tax, Cochin - 2010 (17) STR 534 (Tri.-Bang.) (viii) Kunnel Engineers & Contractors Pvt. Ltd. Vs. C.C.E., Cochin - 2011 (22) STR 296 (Tri.-Bang.) (ix) Intercontinental Consultants & Technocrats Pvt. Ltd. Vs. Union of India - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o malafide intention of the appellant to evade the service tax, therefore the extended period was not invocable. He further submits that the service tax and interest paid before issuance of show cause notice. Since there is no malafide intention as discussed above and extended period was not invocable, as the penalty under Section 78 of the Finance Act also is not imposable invoking the Section 80 of the Finance Act. 3. Shri M.K. Sarangi, Ld. Additional Commissioner (A.R) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the judgment of G.R. Construction case is not applicable in the present case, for the reason that judgment dealt with the issue relates to Notification No.15/2004-ST whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of construction service provided. In the present case undisputedly service is of 'works contract'. As regard works contract the relevant provision under the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 reads as under: "3. (1)….. Explanation.-For the purposes of this sub-rule, gross amount charged for the works contract shall be the sum,- (a) including- (i) the value of all goods used in or in relation to the execution of the works contract, whether supplied under any other contract for a consideration or otherwise; and (ii) the value of all the services that are required to be provided for the execution of the works contract; (b) excluding- (i) the value added tax or sales tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insurance. Only Service Tax will be paid extra @4.12%. Service Tax will also be applicable on value of free issue materials." From the above terms of the contract, it can be seen that there was a clear condition that for the purpose of service tax @ 4.12% the value of free supply of material also to be included. Therefore there was no reason for not including the value of free supply material, this facts also reveal that the appellant having knowledge about the inclusion of free supply material did not include the same and also suppressed the said fact from the department. It is also observed that they did not disclose the value of the free supply material in their ST-3 returns. This is not the case where the issue was under litigation or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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