Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Law/2013-14/2091

Whether free supplies by recipients includible in taxable value of service before claiming abatement?

Case:- G RAMAMOORTHI CONSTRUCTIONS (I) PVT LTDVs COMMISSIONER OF SERVICE TAX, COIMBATORE

Citation:-2014-TIOL-06-CESTAT-MAD

Brief facts:-The applicant is engaged in construction of commercial and residential complexes. While executing such projects, applicant was receiving steel and cement from their customers. The applicant was receiving only the value of services undertaken by them. They claimed abatement under notification 15/04-ST and 1/06-ST and paid service tax on 33% of consideration received. Revenue was of the view that such abatement is available only if value of the entire materials used is included in the gross amount. Based on such argument, two show cause notices were issued for the periods 16/6/05 to 31/3/08 and 1/4/09 to 31/3/10. On adjudication, amounts of Rs.4,56,466/- and Rs.5,59,897/- are confirmed respectively in respect of the said SCNs along with interest and penalties.
Aggrieved by the adjudication order, the applicant filed appeal before Commissioner (Appeals) but the appellant did not get any relief. Aggrieved by the order of Commissioner (Appeals), applicant filed these appeals before Tribunal along with applications for waiver of dues for admission of appeal.

Appellant’s contention:-The counsel for applicant submitted that material given by their customers cannot, form part of the value of consideration received by the applicants. He submits that this issue was before the Hon. Madras High Court in the case of L&T Ltd. Vs UOI - 2007 (7) STR 123 (Mad.) =(2007-TIOL-176-HC-MAD-ST) wherein the Hon'ble Madras High Court prima facie took a view that value of materials supplied by the service recipient cannot be added in the total taxable value and on this count granted waiver of pre-deposit. Further, he submits that the first demand is confirmed by issuing SCN invoking extended period of limitation and hence it is time-barred. He requested that appeal may be admitted without any pre-deposit.

Respondent’s contention:-Opposing the prayer, Ld. AR for Revenue relies on the decision of Calcutta High Court in the case of Simplex Infrastructures Ltd. Vs CST Kolkata: 2011 (263) ELT 195 (Cal.) =(2010-TIOL-899-HC-KOL-ST)wherein the Hon. High Court upheld the order of pre-deposit. He further points out that this issue has been decided finally by the Tribunal in two cases namely Jaihind Projects Ltd. Vs CST Ahmedabad - 2010 (18) STR 650 (Tri.-Ahmd.) = (2010-TIOL-124-CESTAT-AHM)and Paharpur Cooling Towers Ltd. Vs Commissioner of C. Ex., Raipur - 2013 (31) STR 227 (Tri.). He particularly relies on the decision of Jaihind Projects (supra) wherein detailed reason is given at para-28 which is reproduced below:-
"28. We are also unable to accept the view canvassed by the appellant that expression "supplied" "provided" or "used" has to be taken to meaning "supplied and used" by the service provider or "provided and used" by the service provider. As already mentioned earlier, expression "supplied" and "provided" has the same meaning. By using the word "or" between the words "provided" and "used", legislative intent seems to be to ensure that whether it is supplied or provided or used, the value of such goods and materials irrespective of source are to be included. As already observed by us, this is consistent with the definition of the value under Section 67 and the provisions of Valuation Rules, which requires all types of monetary and non-monetary considerations to be taken into account to arrive at the value of service provided.”
It was also submitted that pipes cannot be said to be used for providing the service of construction of pipelines. We do not agree with the appellant that the activity in this case can be compared to painting of air-crafts or installation of computer system. Unlike air craft, computer system, in this case, the pipe is only a part of pipeline and not the final product. Service is laying of the pipelines and not simply providing the pipes. If the service provided happens to be service like sand blasting, painting of the pipes, the contention of the appellant that the pipes cannot be said to have been used, would be perfectly in order, but not in the case of pipeline.”
He submitted that the earlier orders were stay orders and now the Tribunal has taken a final view in this matter. He also pointed out that this Bench has called for pre-deposit in the case of SR Selvaraj & Sons in appeal ST/317/2010 decided on 21.08.2013. He therefore submitted that this applicant also should be asked to make some pre-deposit.

Reasoning of judgment:- Considered the arguments on both sides. Since the matter has been considered by the Tribunal in two appeals and this Tribunal has taken a view that when abatement is claimed, it should be from value inclusive of all the materials used for providing the service. In the case of invoking extended period, we prima facie accept the contention of the counsel of the applicant. Considering the various aspects, we find it proper to call for a reasonable pre-deposit at this stage. Accordingly, the applicant is directed to make a pre-deposit of Rs.1,50,000/- (Rupees One lakh fifty thousand only) within 6 weeks for admission of appeal and to report compliance on 15.10.2013. Subject to such deposit, pre-deposit of balance dues arising from the impugned order is waived and there shall be stay on collection of such dues during pendency of appeal.

Decision:- Part stay granted.

Comment:- This case has ordered some amount as pre-deposit as the value of materials supplied by the service recipient was not included by the assessee in the taxable value of service for the purpose of abatement. However, it appears that the decision of the larger bench in the case of Bhayana Builders was not in the knowledge of the appellant wherein it has been concluded that the value of free supplies by service recipient are not to be included in the taxable value of service.  
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com