TMI Blog2023 (12) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... f service tax and VAT during the period 2006-07 to 2008-09 and so the benefit of cum-tax was required to be given. It is, therefore, not possible to accept the contention of the Department that as the respondent is not entitled to the benefit of cum-tax value, the appeal filed by the Department assailing the finding should be allowed - In view of the fact that the respondent is entitled to the benefit of cum-tax value, the appeal filed by the Department will have to be dismissed as earlier the other two grounds raised in the appeal had not found favour of the Tribunal. Appeal dismissed. - MR. DILIP GUPTA PRESIDENT AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Rajeev Kapoor, Authorised Representative for the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Tribunal's consideration as well. 6. Learned counsel for the respondent-revenue could not oppose this reasonable offer made on behalf of the appellant. 7. In view of this, we allow these appeals in part and set aside the impugned order dated 5th January, 2017 of the Tribunal in so far as it pertains to question no. (c), and remit the case to the Tribunal for fresh adjudication of the said question, after taking into consideration the relevant material/documents produced by the parties. as may be produced by the parties. 8. The parties are directed to appear before the Tribunal on 14th March, 2023. 9. It is clarified that we have not expressed any opinion on merits on questions no. (c). 2. This is how the matter has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls raised by M/s. Bhavna Construction Coon the service recipient [Pavani Buildwell (P) Ltd.] which show that the amounts billed were inclusive of service tax payable. ANNEXURE-7 4. A perusal of paragraph 5 of the order passed by the Supreme Court indicates that the learned counsel appearing for the appellant before the Supreme Court had submitted that sufficient documentary evidence was produced before the Commissioner (Appeals) as well as Adjudicating Authority and given an opportunity the appellant would produce such evidence for the consideration of the Tribunal as well. It is in view of the aforesaid statement made by the learned counsel for the appellant that the Supreme Court observed in paragraph 7 that the Tribunal shall decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service should be based on gross amount including the value of free of cost material supplied by the recipient of service; and (c) Benefit of cum-tax value cannot be extended as the respondent did not produce any supporting evidence to the effect that the consideration received were inclusive of service tax. 9. The Tribunal had earlier in the order dated January 05, 2017 not accepted the first two contentions raised by the department, but the third contention was accepted by the Tribunal holding: 5. Regarding the issue of allowing cum-tax benefit, we note that the respondent have not produced evidence to the effect that the considerations received were inclusive of service tax. In order to consider the amount received as inclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the orders passed by the adjudicating authority and allow the appeal of the appellant. 12. Learned counsel for the applicant has placed reliance upon the tender documents, and particularly to Special Condition no. 10 which provides that the rates quoted shall be deemed to be for the finished work to be measured at site and that the tenderer must include in the rates all taxes applicable on the date of submission of tender that are levied by the Central Government or the State Government or local authority and no separate claim for the taxes shall be entertained by the developer. 13. It is not in dispute that this tender document was filed by the respondent before the adjudicating authority. It is also not in dispute that the lett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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