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TMI Blog2024 (11) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement has been relied upon in the present case the demand has been made on the basis of the third party information received from the income tax department As demand need to be recomputed by treating the gross amount received by the appellant as inclusive of service tax payable in terms of Section 67 (2) of the Finance Act, 1994. As regards the impugned order whereby the benefit on threshold exemption has been sought to be denied. We do not find anything on record to show that the said exemption under Notification No.33/2012 was available to the Appellant. Appeal is partly allowed to the extent that the taxable value should be computed treating the amounts received from the service recipient to be cum-tax price as per the Section 67(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither filed any request for adjournment nor appeared for hearing. 2.3 Accordingly, said request cannot be entertained further. Given amount in the appeal is only Rs.1,24,791/- which do not justify that the matter should be kept pending for this reason. 3.1 I have heard Shri A. K. Choudhary learned Departmental Authorized Representative for the Revenue. 4.1 I have considered the impugned order alongwith submissions made in the appeal and by the Authorized Representative during the course of arguments. 4.2 In the impugned order Commissioner (Appeals) has recorded following findings:- 4.2 I observe that the adjudicating authority in Para 11.10 of the impugned order extended benefit of partial reverse charge in terms of Notification No.30/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gross amount charged by a service provider, for the service provided or to be provided is inclusive of service tax payable, the value of such taxable service shall be such amount as, with the addition of tax payable, is equal to the gross amount charged. (3) The gross amount charged for the taxable service shall include any amount received towards the taxable service before, during or after provision of such service. From the plain reading of the sub section (2) (3) it is evident that gross amount received for the taxable service by the service provider is inclusive of the service tax payable. Emphasis is on the phrase payable used in the sub section (2). The use of word payable raises the presumption in the favour of appellant. Impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us value of sim cards sold to the subscribers shall be deemed to be cum tax price. Division bench of Tribunal in the case of Raj Catering Services (Supra) while confirming demand of service tax extended benefit of cum tax value as department calculated service tax on the gross amount charged by Appellant. 8. The Respondent considered value appearing in 26AS Form cum tax value and Settlement Commission on the basis of sample invoices found that Petitioner is entitled to benefit of cum tax value. The Settlement Commission has further noted that tax was collected but not deposited. The gross value was shown in the balance sheet as well Form 26AS. There seems no reason to deny benefit of cum tax value in view of the fact that price appearing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed in the impugned order. Thus, the appellant is entitled for the consequential relief in this regard. 4.5 In case of Murari Lal Singhal [2019 (25) G.S.T.L. 45 (Tri. - Del.)] Delhi Bench observed: 12. Cum-tax benefit : We observe that appellant herein is engaged in constructing residential complexes and commercial or industrial complexes and has been held eligible for the benefit of abatement vide Notification No. 1/2006. We are of the opinion that in view of provision of Section 67(2) of Finance Act, 1994 cum-tax benefit should be made available to the appellant. We draw our support from the case Madhukar Mittal v. C.C.E., Panchkula - 2015 (40) S.T.R. 969. In another case titled as Professional Couriers v. G.S.T., Mumbai - 2013 (32) S.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find no reason to interfere with the impugned order and we reject both the appeals filed by the Revenue. This decision has been affirmed by Hon ble Supreme Court as reported at [2009 (14) S.T.R. J49 (S.C.)] 4.7 Thus I do not find any merits in the said finding recorded in the impugned order in this respect and hold that the demand need to be recomputed by treating the gross amount received by the appellant as inclusive of service tax payable in terms of Section 67 (2) of the Finance Act, 1994. 4.8 As regards the Para 4.4 of the impugned order whereby the benefit on threshold exemption has been sought to be denied. I do not find anything on record to show that the said exemption under Notification No.33/2012 was available to the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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