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2023 (10) TMI 1164 - AT - Service TaxNon imposition of penalty under Section 76 of the Finance Act, 1994 - Non-inclusion of value of materials received free of cost from the service recipient and used in providing construction of residential complex and civil structures, in the assessable value - demand of differential duty - HELD THAT:- The issue has been settled by the decision of the Hon’ble Supreme Court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT], wherein it has been held that value of goods/materials supplied free of cost by the recipient used for providing taxable service are not includable in the assessable value for the purpose of payment of service tax. It is observed that the decision of Hon’ble Supreme Court is squarely applicable in this case. Relying on the above said decision of the Hon’ble Supreme court, it is held that the demand of service tax along with interest and penalty confirmed in the impugned order are not sustainable. Since the demand of service tax is not sustainable, the demand of penalty under Section 76 does not arise. Accordingly, there is no merit in the department’s appeal. Appeal of Revenue dismissed.
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