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2016 (12) TMI 729 - AT - Service TaxCommercial and Industrial Construction Service - demand - received goods and material like steel, cement etc. free of cost from their customers, which were used by them and their value was not included in the assessable value - Held that: - the issue is no more res integra as the judgment of Larger Bench of this Tribunal in the case of Bhayana Builders (P) Ltd vs. CCE [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] is directly applicable to the issue and is in favour of the assessee, where it was held that The value of goods and materials supplied free of cost by a service recipient to the provider of the taxable construction service, being neither monetary or non-monetary consideration paid by or flowing from the service recipient, accruing to the benefit of service provider, would be outside the taxable value or the gross amount charged, within the meaning of the later expression in Section 67 of the Finance Act, 1994. Accordingly, respectfully following the said decision of the Larger Bench, we hold that the impugned order is unsustainable and liable to set aside. Sale of scrap amounting to ₹ 17.10 lacs which was generated during the course of providing taxable service - whether demand of service tax on such sale justified? - Held that: - We find that sale of scrap, whose nature is not defined in show cause notice, cannot be said to be consideration for the taxable services provided or to be provided. There is no provision in Service Tax Rules for inclusion of value of scrap as an additional consideration; only the amounts received towards taxable services are leviable to service tax. The case of M/s Jay Engineering Works Ltd. vs. C.C.E, Hyderabad [1996 (12) TMI 206 - CEGAT, MADRAS] relied on by the Commissioner pertains to Central Excise and the Commissioner has clearly erred in concluding that its ratio decidendi is applicable to the instant issue. In the absence of any legal provision to include value of sale of scrap in the assessable value for service tax purposes, the same is liable to be set aside. Demand set aside - appeal allowed - decided in favor of assessee.
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