TMI Blog2017 (11) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered and allowed. Penalties - Held that: - since the issue involved was with reference to multiple contracts of different nature, the case was examined and detailed order was passed by the Original Authority, accepting some of the contention of the appellant and rejecting the others - this is a fit case for waiver of penalty by invoking Section 80 - penalties set aside. Personal use of the building by the recipient of service - Held that: - similar set of facts decided in the case of KHURANA ENGINEERING LTD. Versus COMMR. OF C. EX., AHMEDABAD [2010 (11) TMI 81 - CESTAT, AHMEDABAD], where it was held that service provided by the appellant is to be treated as service provided to Govt. of India directly and end use of the residen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Original Authority, who confirmed service tax liability of ₹ 30,09,973/- along with penalties under Section 76 and 78 of the Finance Act, 1994. 2. The appellant /assessee is aggrieved by the above order only to the limited extent on two points viz. :- (a) They have paid service tax of ₹ 15,14,220/-, prior to issue of show cause notice. They are not contesting the same and as such, prayed for waiver of penalty on such tax demand. (b) Service tax liability of ₹ 14,95,753/- is attributable towards tax liability confirmed on the value of materials, which were supplied free of cost by the recipient of service. This value is not to be considered for gross taxable value for works contract service. 3. Ld. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese are composite works contract in terms of Rule 3 of Composition Scheme, the gross value should be considered for such composition as concessional rate is available only when the gross value is taken. In this connection, we note that the appellant/assessee relied on the decision of the Tribunal in the case of Bhayana Builders (P) Ltd. 2013 (32) STR 49 (Tribunal-LB). Ld. AR contested the application of the said decision to the dispute in hand. We have examined the said decision. It is clear that the Tribunal examined the scope of Section 67 and recorded the following findings:- 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to multiple contracts of different nature, the case was examined and detailed order was passed by the Original Authority, accepting some of the contention of the appellant and rejecting the others. In view of the facts and circumstances of the case, we find that this is a fit case for waiver of penalty by invoking Section 80. Accordingly, penalties imposed on the appellant/assessee are set aside. 9. Considering the appeal by the Revenue, we note that the two points of grievance raised are recorded above. 10. On the first issue, regarding the personal use of the building by the recipient of service, we note that simile set of facts came for consideration before the Tribunal in Khurana Engg. Ltd. 2011 (21)STR 115 (Tribunal-Ahmd.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic documents to be supplied by the appellant/assessee. 12. In view of the above discussion and analysis, we note that the Original Authority may require factual verification of two aspects viz. quantum of exclusion with reference to free supply materials from the taxable value in terms of the ratio of the decision of the Tribunal in the case of Bhayana Builders P. Ltd. (supra) and the eligibility of the appellant /assessee for composition scheme applying the ratio of the Apex Court decision in Nagarjuna Construction Co. Ltd. (supra) as well as the decision of Tribunal in the case of ABL Infrastructure Pvt. Ltd. (supra) . Except for this limited remand, the other aspects pleaded by the appellant/assessee are admitted and al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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