9911796707
TMI Blog2023 (1) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... e period July 2012 to September 2013 and the show cause notice dated 10.04.2015 issued for the period October 2013 to September 2014. The demand raised in all the aforesaid three show cause notices has been confirmed for the reason that though diesel and explosives were supplied free of cost to the appellant by Rajasthan States Mines and Minerals Ltd [Rajasthan Mines] , but as these items were consumed during the mining process and without use of these items the appellant could not have provided mining services, the value of these items would be includable in the taxable value of mining services. 2. The appellant is engaged in providing mining services to Rajasthan Mines under Letters of Acceptance dated 25.07.2008, 21.05.2009, 19.06.2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax. However, show cause notices were issued to the appellant mentioning therein that non inclusion of the value of free items provided by Rajasthan Mines had resulted in short payment of service tax since it was an additional commercial consideration flowing directly from the recipient to the appellant in relation to service provided. The appellant filed a reply to the three show cause notices, but by a common order dated 22.11.2016 the Commissioner confirmed the demand of service tax. The relevant portion of the order is reproduced below:- "15. In the instant case, the assessee have provided mining services which, it is obvious, cannot be completed without the use of the material i.e. diesel and explosives. It is also obvious tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 (32) S.T.R. 49 (Tri.-LB)] was distinguished by the Commissioner for the following reason :- " 26. xxxxxxxxxx Notwithstanding the fact that the case of Bhavana Builders has not attained finality as an appeal against the same is pending before the Hon'ble Apex Court, I find that the case of Bhayana Builders is on an entirely different footing and relates to an entirely different taxable service, that of construction services. In terms of the provisions contained wider the Finance Act, 1994, the scheme of levy of service tax on construction services envisages abatement to such service providers on various aspects including cost of land, cost of goods supplied / sold during the provision of the said service, etc. The provisions relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order. 8. The submissions advanced by the learned counsel for the appellant and the learned Authorized Representative of the Department have been considered. 9. The issue involved in this appeal is as to whether the value of items supplied free of cost by service recipient to the appellant have to be included in the value of mining services provided by the appellant. 10. This precise issue came up for consideration before the Supreme Court in Bhayana Builders as the issue before the Supreme Court was also whether the value of goods/material supplied or provided free of cost by a service recipient and used for providing the taxable service of construction or industrial complex is to be included in the computation of gross amount for va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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