TMI Blog2021 (9) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... are directed against order-in-original No. 14- 16/COMMR/Dr.KNR/CGST C.EX/MC/2018 dated 07.12.2017 passed by Commissioner of CGST Central Excise, Mumbai Central. By the said order, the Commissioner has held as under:- ORDER 1. I determine and confirm the demand of Service Tax of ₹ 33,54,84,537/- (Rs. Thirty Three Crores Fifty Four Lakhs Eighty Four Thousand Five Hundred Thirty Seven only) under Section 73(2) of Finance Act, 1994, (₹ 13,61,89,309/- with reference to Show Cause Notice Nos.1197/COMMR/2014-15 dated 17.04.2014, ₹ 12,75,87,994/- with reference to SCN No. Commr./36/2014-15 dated 13.04.2015/- and ₹ 7,17,07,234/- with reference to SCN No. Commr/175/2014-15 dated 17.12.2015) being levied on fuel supplied in respect of Mining Service against the Noticee, under Section 73(2) of the Finance Act, 1994. 2. I order for recovery of interest as applicable on the demand confirmed of service tax amounting to ₹ 33,54,84,537/- in terms of Section 73B of the Finance Act, 1994. 3. I order to impose penalty of ₹ 3,00,00,000/- (Rupees Three Crores only) on M/s. Greatship (India) Ltd., under Section 76 of the Finance Act, 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994. (iii) Penalty should not be imposed on them under Section 76 of the Act for failure to pay Service tax within the prescribed time as required under Section 68 of the Act and Rule of the Rules. Show cause notice dated 17.12.2015 sought as to why:- i) the amount of ₹ 47,61,97,440/- (Rupees Forty Seven Crores Sixty One Lacs Ninety Seven Thousand Four Hundred and Forty only) as the Service Tax liability not paid by them during the period April, 2014 to March 2015 should not be demanded and recovered from them under Section 73(1) of Chapter V of the Finance Act, 1994; ii) interest at the appropriate rate should not be demanded and recovered from them under provisions of Section 75 of the Finance Act, 1994; iii) penalty should not be imposed upon them under Section 76 of the Finance Act, 1994. 2.4 The show cause notices were adjudicated as per the impugned order referred to in para 1 above. 3.1 Aggrieved by the confirmation of demand in respect of free diesel supplied for providing mining services the assessee has filed this appeal and against dropping of the demand in respect of free diesel attributable to supply of tangible goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of providing or agreeing to provide a taxable service, subject to the fulfilment of the prescribed conditions. In the present case, it is an admitted fact on record that the appellant had never charged any cost of fuel to M/s. ONGC over and above the amount claimed by it for providing the taxable service. Since, M/s. ONGC was not required to make payment of fuel to the appellant, its value cannot be added to the taxable value both under the unamended and amended provisions of Section 67 ibid. Further, the appellant herein had received the entire consideration for provision of service in monetary terms. Hence, it cannot be said that it was not properly able to determine the value of taxable service, in order to attract the provisions of Rule 3(b) of the Service Tax (Determination of Value) Rules, 2006. Similarly, the provisions of Rule 5 ibid also would not attract in this case inasmuch as no cost of fuel was charged or billed by the appellant to the recipient of service. 8 . We find that the issue arising out of the present dispute is no more res integra, in view of the judgment of Hon ble Supreme Court in the case of M/s. Bhayana Builders (P) Ltd. (supra), relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The amount charged should be for for such service provided : Section 67 clearly indicates that the gross amount charged by the service provider has to be for the service provided. Therefore, it is not any amount charged which can become the basis of value on which service tax becomes payable but the amount charged has to be necessarily a consideration for the service provided which is taxable under the Act. By using the words for such service provided the Act has provided for a nexus between the amount charged and the service provided. Therefore, any amount charged which has no nexus with the taxable service and is not a consideration for the service provided does not become part of the value which is taxable under Section 67. The cost of free supply goods provided by the service recipient to the service provider is neither an amount charged by the service provider nor can it be regarded as a consideration for the service provided by the service provider. In fact, it has no nexus whatsoever with the taxable services for which value is sought to be determined. 13. A plain meaning of the expression the 13. gross amount charged by the service provider for such service prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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