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2018 (11) TMI 225 - AT - Service TaxValuation - Commercial or Industrial Construction Services - inclusion of FOC material while claiming abatement of 67% as provided under N/N. 15/04-ST or N/N. 1/2006-ST dated 01.03.2006 - whether the value of construction material as provided free by M/s.NTPC (the service recipient) to M/s. NBCC (the service provider) for the purpose of providing services under the category of commercial or industrial construction services is required to be added in the value of the services or not? Held that:- After the amendment, Section 67 of the Act says that where the service tax is chargeable on any taxable service with reference to its value, then such value shall in a case when the provision of service is for consideration in money be the gross-amount charged by the service provider for such service. (as is mentioned in sub-clause (i) thereof). However, as per sub-clause (ii) thereof where provision of service is for a consideration not wholly or partly consisting of money, the value shall be such amount in money as with addition to service tax charged is equivalent to consideration and where the provision of service is for consideration which is not ascertainable, be the amount as may be determined in the prescribed manner. Thus, after the amendment in Section 67 of the Act the explanation thereof purports to define the expressions “consideration” “money” and “gross amount charged”. Such material provided by the service recipient is to be used for service recipient only. Hence no benefit has accrued to the service provider due to the said free construction material. Therefore, we are of the opinion that the said construction material would not constitute a non-monetary consideration - Thus, gross amount charged shall include the construction material if and only if some value is charged for the same. Hence, the construction material supplied by the service recipient free of cost, the amount thereof is not the gross amount taxable value as not being charged. However, for the construction material (may be minor) as used by the service provider i.e. the appellant he is liable to take the benefit of this Notification. The adjudicating authority has committed an error while interpreting the provisions qua valuation of the taxable service and has also committed an error while ignoring the settled principle of law rather has relied upon the over ruled decision. The findings are therefore liable to be set aside. Time Limitation - Held that:- Burden of proof of proving malafide conduct under the proviso to Section 28 of the Act lies with the Revenue that in furtherance of the furtherance of the same specific averments should find mention in the SCN, which is the mandatory requirement for commencement of the action under the said proviso, and where nothing on record displays a wilful default on the part of the assessee, extended period of limitation under the said provision couldn’t be invoked against the assessee - the impugned SCN as being barred by time. Appeal allowed - decided in favor of appellant.
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