2018 (8) TMI 1107 – CESTAT AHMEDABAD – TMI – Benefit of abatement – N/N. 1/2006-ST dated 1st March, 2006 – Construction services – inclusion of free of cost material – Held that:- The inclusion of free of cost material while rendering the construction service is no more res-integra in view of judgment of Hon’ble Supreme Court in the case of CST vs. Bhayana Builders (P) Ltd. [2018 (2) TMI 1325 – SUPREME COURT OF INDIA], where it was held that The value of the goods/materials cannot be added for the purpose of notification dated September 10, 2004, as amended by notification dated March 01, 2005 – appeal dismissed – decided against Revenue. – Service Tax Appeal No. 54325 of 2015 – ST/A/52731/2018-CU[DB] – Dated:- 6-8-2018 – Shri C.L. Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri G.R. Singh, Authorized Representative (DR) – for the appellant. Shri A.K. Batra, C.A. and Ms. Vibha Narang, Advocate – for the Respondent. ORDER Per. Rachna Gupta:- The present appeal ag
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a period w.e.f. April 2007 to September 2011 was also served raising a demand of ₹ 5,36,13,499/-. Both these show cause notices have been adjudicated by the orders under challenge in favour of the assessee/respondent. Hence, the present appeal. 3. We have heard both the parties. It has brought to the notice that the issue involved about inclusion of free of cost material while rendering the construction service is no more res-integra in view of judgment of Hon ble Supreme Court in the case of CST vs. Bhayana Builders (P) Ltd. – 2018 (10) GSTL 118 (S.C.) and the judgment of Larger Bench of this Tribunal in the case of Bhayana Builders (P) Ltd. – 2013 (32) S.T.R. 499 (Tri. – LB). The respondent has simultaneously rest upon the said judgment. After hearing and pursuing the decision rest upon by the respondent, we observed that the issue involved herein is considered by the Hon ble Supreme Court, the relevant extract of judgment is reproduced here-in-below :- 4. The question, theref
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uivalent 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 1, 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. T
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