TMI Blog2023 (9) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax. The issue is no longer res-integra as the matter has already been decided by Hon ble Apex Court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [ 2018 (2) TMI 1325 - SUPREME COURT ], where it was held that The value of the goods/materials cannot be added for the purpose of aforesaid notification dated September 10, 2004, as amended by notification dated March 01, 2005. It is clear from the above that the service tax is to be levied in respect of taxable services and for the purpose of arriving at 33% of the gross amount charged, unless value of some goods/materials is specifically included by the Legislature, that cannot be added. The impugned order-in-original set aside - appeal allowed. - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) And HON BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Amber Kumrawat, Advocate for the Appellant Shri G. Kirupanandan, Assistant Commissioner (AR) for the Respondent ORDER C. L. MAHAR : The brief facts of the matter are that appellant are a service provider under the category of services such as Erection, Commissioning and Installation Service, Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice provider need to be included in the taxable value for the purpose of discharging service tax as per the provision of Section 67 of the Finance Act, 1994. 3. The learned Advocate has also argued that the issue involved in the present case whether the value of free supply of material like steel pipes and valves supplied by M/s. GSPC Gas Company Limited to the appellants need to be included in the gross amount charged for the purpose of discharging service tax liability under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 as amended by Notification No. 23/2009-ST dated 07.07.2009, it was pointed out that the issue is no more res-integra in view of the decision of the Hon ble Supreme Court in the case of CCE vs. Bhayana Builders (P) Limited 2018 (2) TMI 1325 wherein the Hon ble Apex Court categorically held that for the purpose of valuation of taxable service, under the provisions of Section 67 of Finance Act, 1994 the mention of the gross amount charged by the service provider for such service provided or to be provided by him on which tax should be discharged include the amount charged by the service provider from the service recipient and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the consideration which is not received by the service provider shall not form part of taxable value under the term gross amount charged under Section 67 for levy of service tax. 6. As pointed out in the preceding paragraphs, the issue is no longer res-integra as the matter has already been decided by Hon ble Apex Court in the case of Commissioner of Service Tax etc. vs. Bhayana Builders (P) Limited etc. reported in 2018 (2) TMI 1325 SUPREME COURT. The ratio of the decision is extracted below:- 16) In fact, the definition of gross amount charged given in Explanation (c) to Section 67 only provides for the modes of the payment or book adjustments by which the consideration can be discharged by the service recipient to the service provider. It does not expand the meaning of the term gross amount charged to enable the Department to ignore the contract value or the amount actually charged by the service provider to the service recipient for the service rendered. The fact that it is an inclusive definition and may not be exhaustive also does not lead to the conclusion that the contract value can be ignored and the value of free supply goods can be added over and abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial, it would be anybody s guess as to what went in the mind of the Central Government in issuing these notifications and prescribing the service tax to be calculated on a value which is equivalent to 33% of the gross amount. Secondly, the language itself demolishes the argument of the learned counsel for the Revenue as it says 33% of the gross amount charged from any person by such commercial concern for providing the said taxable service . According to these notifications, service tax is to be calculated on a value which is 33% of the gross amount that is charged from the service recipient. Obviously, no amount is charged (and it could not be) by the service provider in respect of goods or materials which are supplied by the service recipient. It also makes it clear that valuation of gross amount has a causal connection with the amount that is charged by the service provider as that becomes the element of taxable service . Thirdly, even when the explanation was added vide notification dated March 01, 2005, it only explained that the gross amount charged shall include the value of goods and materials supplied or provided or used by the provider of construction service. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zzzh) of clause (105) of Section 65 of Chapter V of the Act under which such notifications were issued. 21) For the aforesaid reasons, we find ourselves in agreement with the view taken by the Full Bench of CESTAT in the impugned judgment dated September 6, 2013 and dismiss these appeals of the Revenue. 22) Insofar as Civil Appeal No. 3247 of 2015 is concerned, where the assessee is Gurmehar Construction, it may additionally be noted (as pointed out by the learned counsel for the respondent) that the assessee was a sole proprietorship concern of Mr. Narender Singh Atwal, who died on February 24, 2014. This is so stated in the counter affidavit filed by the respondent on May 16, 2017 and this position has not been disputed by the Department. This appeal, in any case, has abated as well in view of the judgment of this Court in Shabina Abraham Ors. v. Collector of Central Excise Customs (2015) 10 SCC 770 23) As a result, all appeals stand dismissed. 7. In view of the above observations and following the decision of the Hon ble Apex Court (supra), we set-aside the impugned order-in-original and allow the appeal. ( Pronounced in the open court on 11.09.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
