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TMI Blog2017 (4) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... e are that the appellant entered into the contract dated 20.05.2005 with M/s.Hindustan Zinc Ltd for production, Drilling & Associates Work in Underground Sindesar Khurd Mine. 3. The Revenue has treated the activities undertaken by the appellant under the category of site formation service, and the impugned order in original confirmed the service tax demand of Rs. 21,58,467/- under the category of site formation service. 3.1 For execution of the subject services the assessee - appellant received certain free supplies from M/s. Hindustan Zinc Ltd. who are the recipient of their services as per the contract. The Revenue in the impugned order has confirmed the demand of service tax on the value of free supplies which include electricity and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xable and not any material supplied for use during the course of rendition of service. 6.1. In support, the appellant relying on the following case laws:- 1. Bhayana Builders P. Ltd. vs. Commissioenr of Service Tax, Delhi- 2013 (32) STR 49 (Tri.-LB) 2. Karamjit Singh & Co. Ltd. vs. Commissioenr of C. Excise, Razipur - 2013 (32) STR 740 (Tri.-Del.) 7. Ld. D.R. reiterates the findings given in the impugned order. 9. After having carefully gone through the case records and submissions of both the sides, it appears that the activities of services under consideration are to be treated as an activity auxiliary to the mining, their contract being indivisible contract. Such services are not taxable under the category of site formation cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal held that in such situation the activities of site formation and clearance are to be treated as an activity ancillary to mining and since the overall contract for mining the contract being indivisible the same should be treated as mining contract. It was also held that w.e.f. 01/6/2007 when the activity of the appellant has been accepted by the Department as mining service, for the period prior to 01/6/2007 the same activity cannot be classified under site formation service. We find that the impugned order cannot be sustained on this ground." 9.2 Therefore, service tax demand of Rs. 21,58,467/- under the category of site formation service cannot be sustained and is hereby dropped. 10. In the case of free supply made by M/s.Hindust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service provider and should accrue to the benefit of the later. "Free supplies", incorporated into construction (cement or steel for instance), even on an extravagant inference, would not constitute a non- monetary consideration remitted by the service recipient to the service provider for providing a service, particularly since no part of the goods and materials so supplied accrues to or is retained by the service provider. Wherever a monetary consideration is charged for providing the taxable service and no non-monetary consideration forms part of the agreement between the parties, it is clause (i) that applies and the value of the taxable service would in such case be the gross amount charged by the service provider and paid by the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such sale; consequently could not also constitute the value of taxable services. Ld. Counsel placed reliance on the judgment in M/s. Gannon Dunkerley and Co. and Others v. State of Rajasthan and Others - (1993) 1 SCC 364; and State of Andhra Pradesh and Others v. Larsen & Toubro Limited and Others - (2008) 9 SCC 191, to buttress this contention." 10.1 CESTAT in the said decision Finally concludes as follows:- "16. In conclusion we answer the reference as follows : (a) 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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