TMI Blog2021 (2) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... while arriving at the gross amount‟ for the reason that no price is charged by the assessee/ service provider from the service recipient in respect of such goods/materials. The decision of the larger bench of the Tribunal in M/S BHAYANA BUILDERS (P) LTD. OTHERS VERSUS CST, DELHI OTHERS. [ 2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] and the decision of the Supreme Court in Bhayana Builders are clearly applicable to the facts of the present case inasmuch as the charge in the show cause notice is that the cost of material supplied free of cost should be included in the gross value of the taxable service provided by the appellant. Appeal allowed - decided in favor of appellant. - SERVICE TAX APPEAL NO. 50414 OF 2017 - FINAL ORDER NO. 51033/2021 - Dated:- 1-2-2021 - HON BLE MR. JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri B.L. Narasimhan and Shri Narendra Singhvi, Advocates for the Appellant Dr. Radhe Tallo, Authorized Representative for the Respondent ORDER JUSTICE DILIP GUPTA : M/s TCL - MMPL Consortium, the appellant has assailed the order dated November 29, 2016 passed by the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the items supplied on free of cost cannot be brought within the ambit of the term consideration and, hence, cannot be included in the value of taxable services. 6. The Commissioner, however, by order dated November 29, 2016 confirmed the demand of service tax with penalty and interest. The relevant portion of the order passed by the Commissioner is reproduced below: 4.3 ***** ***** ***** ***** Thus, it is evident that the assessee while providing mining service to HCL, received free supply of certain items/facilities without which the taxable service could not have been rendered by them. It clearly indicates that in case the assessee had provided the same service to any other service recipient, they would have to purchase all these items from open market on payment of appropriate value thereof. It is beyond doubt that detonators, explosives, diesel, electricity etc. are essential items and have nexus with the services provided. The value of such items supplied free of cost are includible in the gross value of taxable service provided by the assessee. ***** ***** ***** ***** I observe that the assessee has mainly placed reliance in the case of M/s Bhayana Builde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining services provided by the appellant; (iii) The fact whether the appellant could provide mining services without use of these items is completely irrelevant in determining whether the same will form part of consideration for mining services. What is important is whether the same are in nature of consideration for mining services in terms of the mutual understanding between the appellant and HCL. In this connection, reliance has been placed on a larger bench decision of the Tribunal in Bhayana Builders which was affirmed by the Supreme Court in CST vs. Bhayana Builders (P) Limited, 2018 (10) GSTL 118 (SC); (iv) The issue under consideration has also been decided by the Department in the matter of M/s Teknomin Construction Limited by dropping the demand. No different view can be adopted in the present case. The said order was cited by the appellant before the adjudicating authority but no finding has been recorded in the impugned order. In this regard, reliance has been placed on the following decisions : a. Damodar J Malpani vs. CCE, 2002 (146) ELT 483 (SC) b. Niraj Prasad vs. CCE ST, 2019-tiol-3237-CESTAT-ALL c. Rosmerta Technologies Limited vs. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act. 14. The decision of the larger bench of the Tribunal in Bhayana Builders and the decision of the Supreme Court in Bhayana Builders are clearly applicable to the facts of the present case inasmuch as the charge in the show cause notice is that the cost of material supplied free of cost should be included in the gross value of the taxable service provided by the appellant. 15. Learned Authorized Representative of the Department has, however, placed reliance upon a Division Bench decision of the Tribunal in ABL Infrastructure Pvt. Ltd. The relevant portion of the aforesaid decision is reproduced below: The fact of the case is that the appellant is engaged in providing works contract service. They have paid the Service Tax on the value which did not include the material supplied free of cost by the service provider during the period January, 2011 to March, 2012. The Department issued a show cause notice dated 12-2-2013 contending that the free supply material should be included in the gross value under the composition scheme of works contract accordingly there is a short payment of Service Tax. The adjudicating authority confirmed the demand and imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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