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TMI Blog2023 (7) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Larger Bench of the Tribunal in M/S BHAYANA BUILDERS (P) LTD. OTHERS VERSUS CST, DELHI OTHERS. [ 2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] where it was held that sub-section (4) of Section 67 states that the value shall be determined in such manner as may be prescribed, however, it is subject to the provisions of sub-sections (1), (2) and (3). Moreover, no such manner is prescribed which includes the value of free goods/material supplied by the service recipient for determination of the gross value. Thus, the value of materials provided free of cost by customers to the appellant cannot form part of the taxable services rendered by the appellant as neither any price was charged by the appellant for such items, nor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . JUSTICE DILIP GUPTA, PRESIDENT And HON BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Shri B.L. Narasimhan and Shri Kunal Agarwal, Advocates for the Appellant Shri Harshvardhan, Authorized Representative for the Department ORDER Justice Dilip Gupta : M/s. Dharatal Infrastructures the appellant has filed this appeal to assail the order dated 19.01.2015 passed by the Commissioner, Central Excise and Customs, Raipur the Commissioner by which the demand of service tax has been confirmed and the amount already paid by the appellant has been appropriated with penalty and interest. 2. The appellant was, during the period in dispute from April 2008 to March 2012, engaged in providing commercial or industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lculation of service tax for availing abatement; and (ii) CENVAT credit and abatement under the notification dated 01.03.2006 cannot be availed simultaneously. The appellant had, therefore, availed the CENVAT credit and abatement under the said notification wrongly. 5. The appellant has reversed CENVAT credit (including Cess credit) amounting to Rs. 13,82,845, which was taken in the ST-3 returns during the relevant period and copy of the challan evidencing such reversal/payment has been enclosed. 6. Shri B.L. Narasimhan, learned counsel for the appellant assisted by Shri Shashwat Arya made the following submissions: (i) The value of free of cost of items is not to be included in the gross value for availing abatement. This posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge is not to be included while arriving at the gross amount simply, because of the reason that no price is charged by the assessee/service provider from the service recipient in respect of such goods/materials. This further gets strengthened from the words for such service provided or to be provided by the service provider/assessee. Again, obviously, in respect of the goods/materials supplied by the service recipient, no service is provided by the assessee/service provider. Explanation 3 to sub-section (1) of Section 67 removes any doubt by clarifying that the gross amount charged for the taxable service shall include the amount received towards the taxable service before, during or after provision of such service, implying thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 could not have been denied to the appellant and the demand is liable to be set aside. In this connection reliance can be placed on the judgement of the Supreme Court in Chandrapur Magnet Wires (P) Ltd. vs. Collector of Central Excise 1996 (81) E.L.T. 3 (SC) , wherein it was held that credit reversed is equivalent to non-availment of credit. 13. In this view of the matter it would not be necessary to examine the contention raised by the learned counsel for the appellant that the extended period of limitation could not have been invoked in the facts and circumstances of the case. 14. Thus, for all the reasons stated above, the impugned order dated 19.01.2015 passed by the Commissioner cannot be sustained and is set aside. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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