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TMI Blog2023 (3) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon ble Apex Court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [ 2018 (2) TMI 1325 - SUPREME COURT] . The said judgment has taken into consideration the issue even after the amendment brought forth in Section 67 of the Finance Act, 1994 - It was held in the case that The value of the goods/materials cannot be added for the purpose of aforesaid notification dated September 10, 2004, as amended by notification dated March 01, 2005. Thus, the demand cannot sustain and requires to be set aside - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to deny the benefit of abatement. The issue is no longer res integra and decided by the Hon'ble Apex Court in the case of M/s. Bhayana Builders (P) Ltd. (supra). The said judgment has taken into consideration the issue even after the amendment brought forth in Section 67 of the Finance Act, 1994. The relevant portion reads as under:- "11. As already pointed out in the beginning, all these assessees are covered by Section 65(25b) of the Act as they are rendering "construction or industrial construction service", which is a taxable service as per the provisions of Section 65(105)(zzq) of the Act. The entire dispute relates to the valuation that has to be arrived at in respect of taxable services rendered by the assessees. More precis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by the use of the word "charged", it is clear that the same refers to the amount billed by the service provider to the service receiver. Therefore, in terms of Section 67, unless an amount is charged by the service provider to the service recipient, it does not enter into the equation for determining the value on which service tax is payable. b. The amount charged should be for "for such service provided" : Section 67 clearly indicates that the gross amount charged by the service provider has to be for the service provided. Therefore, it is not any amount charged which can become the basis of value on which service tax becomes payable but the amount charged has to be necessarily a consideration for the service provided which is taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x is to be calculated on a value which is 33% of the gross amount that is charged from the service recipient. Obviously, no amount is charged (and it could not be) by the service provider in respect of goods or materials which are supplied by the service recipient. It also makes it clear that valuation of gross amount has a causal connection with the amount that is charged by the service provider as that becomes the element of "taxable service". Thirdly, even when the explanation was added vide notification dated March 1, 2005, it only explained that the gross amount charged shall include the value of goods and materials supplied or provided or used by the provider of construction service. Thus, though it took care of the value of goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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