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2023 (8) TMI 797 - AT - Service TaxNon-payment of Service tax - non-inclusion of service tax in respect of the advance received from M/s Areans and M/s A.K.M (MBD) - non-inclusion value of free supply material while calculating the tax liability - HELD THAT:- It is not in dispute in the impugned case that the contracts entered into by the appellants involve material as well as service component. As such, the service rendered by the appellants is taxable only from 01.06.2007. Moreover, in view of the decision in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT], the value of free supply items cannot be included in the assessable value for the purpose of calculation of service tax. Merits apart, it is found that the show-cause notice and thus, the impugned order are not sustainable on the question of limitation. It is not disputed that repeated show-cause notices have been issued to the appellants on the very same issue and on the basis of very same objections raised by the Audit. It is not permissible in view of the Hon’ble Supreme Court judgment in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT]. It was followed in a number of decisions by the Hon’ble High Courts and the Tribunal. The impugned order is not sustainable and is liable to be set aside - Appeal allowed.
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