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2019 (1) TMI 1112 - AT - Service TaxValuation - commercial or industrial construction service - inclusion of ‘written off dues’ in assessable value - Held that:- It is surprising that the adjudicating authority has deemed these debit notes, relating to supply of materials by the customers, to be documents that substitution of monetary consideration by nonmonetary consideration. Consideration, in common understanding, is the recompense for providing anything to a provider and is, consequently, subsumed within the property of the provider. Debit notes imply the intent to withhold the value therein from the monetary consideration and the issue of materials in lieu for subsuming in an asset that will vest with the issuer cannot, by any stretch, be deemed to be consideration - It is, therefore, not the ‘non-monetary consideration’ referred to in section 67 of Finance Act, 1994 and the relevant Rules. Penalty u/s 78 of FA - Held that:- The appellant is a provider of services against contract that also involves supply of goods which would take the activity beyond the ambit of tax under the provisions that have been held to be service simplicitor. In these circumstances, and the due discharge of tax liability on the undisputed portion of the demand, imposition of penalties under section 78 of Finance Act, 1994 is not appropriate. The recovery of tax of ₹ 10,07,854 and penalty imposed under section 78 of Finance Act, 1994 is set aside - appeal allowed - decided in favor of appellant.
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