CCE & CGST, Delhi – III Versus M/s G.D. Builders
Service Tax
2018 (8) TMI 1107 – CESTAT AHMEDABAD – TMI
CESTAT AHMEDABAD – AT
Dated:- 6-8-2018
Service Tax Appeal No. 54325 of 2015 – ST/A/52731/2018-CU[DB]
Service Tax
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 against the order-in-original No. 23/ST/SVS/DL-III/2015 dated 17/07/2015 with the subsequent review order No. 35/2015-16 dated 20/11/2015.
2. The facts relevant for the purpose of this appeal that the respondent are registered for providing construction of residential complex services, commercial or industrial construction service and the works contract services. The Department during the audit observed that the respondent were paying the service tax after availing the benefit of a
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n 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, therefore, which has fallen for consideration is as to whether, the value of goods/material supplied or provided free of cost by a service recipient and used for providing the taxable service of construction or industrial complex, is to be included in computation of gross amount (charged by the service provider), for valuation of the taxable service, under Section 67 of the Act and for availing the benefits under Notification No. 15/2004-S.T., dated September 10, 2004 as amended by Notifica
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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. Thus, though it took care of the value of goods and materials supplied by the service provider/assessee by including value of such goods and materials for the purpose of arriving at gross amount charged, it did not deal with any eventuality whereby value of goods and material supplied or provided by the service recipient were also to be included in arriving at gross amount 'gross amount charged'.”
4. Relying thereupon, we hold that the issue is no more res-integra and upon relying on above lin
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