2025 (8) TMI 1402 - AT - Service Tax

Free chlorine supplied by recipient not includible in taxable value of services under Section 67(1) and 67(4)

CESTAT CHENNAI - AT allowed the appeal, holding that the cost of chlorine supplied free by the service recipient is not includible in the taxable value of ... Calculation of service tax - non-inclusion of value of the free supply of chlorine supplied by the service recipients in the taxable value for payment of service tax - HELD THAT:- The issue is no more res integra in view of the Judgement of the Honourable Apex Court in CST v Bhayana Builders (P ) Ltd, [2013 (9) TMI 294 - CESTAT NEW DELHI-LB] by which judgement the decision of the Tribunal in Bhayana Builders Pvt Ltd v CST, Delhi, [2018 (2) TMI 1325 - SUPREME COURT] was affirmed - It was held by Apex Court that 'Explanation 3 to sub-section (1) of Section 67 removes any doubt by clarifying that the gross amount charged for the taxable service shall include the amount received towards the taxable service before, during or after provision of such service, implying thereby that where no amount is charged that has not to be included in respect of such materials/goods which are supplied by the service recipient, naturally, no amount is received by the service provider/assessee. Though, sub-section (4) of Section 67 states that the value shall be determined in such manner as may be prescribed, however, it is subject to the provisions of subsections (1), (2) and (3). Moreover, no such manner is prescribed which includes the value of free goods/material supplied by the service recipient for determination of the gross value.' Thus, the cost of chlorine supplied free of cost by the service recipient to the appellant is not includible in the taxable value of services provided by the appellant for levy of service tax. The impugned orders in appeal cannot sustain and are hereby set aside - Appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED Whether the value of materials/goods supplied free of cost by the service recipient to the service provider is includible in the 'gross amount charged by the service provider for such service provided or to be provided by him' for the purposes of Section 67 of the Finance Act, 1994, and thereby subject to service tax. Whether reliance on a Tribunal Larger Bench decision is impermissible where an appeal from that decision is pending before the Apex Court (as applied by the appellate authority below). 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Inclusion of free-supplied goods in taxable value under Section 67 Legal framework: Section 67 defines value for taxable service as 'the gross amount charged by the service provider for such service provided or to be provided by him.' Explanation 3 to sub-section (1) clarifies that gross amount charged includes amounts received towards the taxable service before, during or after provision of such service. Sub-section (4) permits determination of value by prescribed manner, subject to subsections (1)-(3). Precedent treatment: The Larger Bench view of the Tribunal in Bhayana Builders was followed by the Apex Court in a subsequent judgment affirming that decision. The adjudicatory authorities below had declined to apply the Larger Bench decision on the ground that an appeal from that decision was pending before the Apex Court; the Tribunal in the present appeals expressly considered and followed the Apex Court's later ruling. Interpretation and reasoning: The phrase 'gross amount charged' denotes the contractually billed amount; 'gross' signifies total charged without deduction of expenses but does not empower the Department to go beyond amounts charged. The word 'charged' requires that an amount be billed by the service provider to the service recipient; absent a charge, there is no entry into the taxable value. The further phrase 'for such service provided' requires nexus between the amount charged and the taxable service; only amounts that are consideration for the taxable service form part of value. Goods supplied free by the recipient neither constitute an amount 'charged' by the provider nor a consideration for the service and therefore lack the necessary nexus. Explanation 3's reference to amounts 'received' reinforces that where no amount is charged/received, inclusion is inapplicable. Although subsection (4) permits valuation rules, such rules are subject to subsections (1)-(3) and do not prescribe inclusion of free goods in gross value. Ratio vs. Obiter: The holding that free goods supplied by the service recipient are not includible in the gross amount charged under Section 67 is ratio decidendi of the court's analysis. Observations explaining the linguistic import of 'gross', 'charged' and 'for such service provided', and the interaction with Explanation 3 and subsection (4), form part of the core ratio. Any ancillary commentary about valuation machinery being subject to subsections (1)-(3) is persuasive but not necessary to the central holding. Conclusion: The cost of goods (chlorine) supplied free of charge by the service recipient is not includible in the taxable value of services for levy of service tax under Section 67; therefore demands based on inclusion of such free supplies cannot stand. Issue 2 - Effect of a pending appeal against a Tribunal Larger Bench decision on reliance upon that decision Legal framework: Judicial precedent may be relied upon if it has been affirmed by a higher court or remains binding law; the persuasive or binding character of a Tribunal decision depends on whether it has been overruled or affirmed by superior fora. Precedent treatment: The appellate authority below declined to accept reliance on the Larger Bench decision because an appeal against that decision was pending before the Apex Court. The Tribunal, however, applied the subsequent Apex Court affirmation of the Larger Bench decision, thereby resolving any uncertainty. Interpretation and reasoning: A decision of the Apex Court affirming a Tribunal Larger Bench settles the legal question and removes the infirmity of relying on a Tribunal decision against which an appeal was earlier filed. Where the superior court has pronounced on the point, that pronouncement is binding and must be followed by subordinate authorities. Ratio vs. Obiter: The proposition that a pending appeal may render reliance on a Tribunal decision problematic is a practical observation, but the decisive ratio is that an Apex Court affirmation renders the earlier uncertainty moot and makes the Tribunal/Larger Bench view binding. Conclusion: Reliance on the Larger Bench decision was justified once the Apex Court affirmed that decision; the appellate authority's refusal to accept that reliance because of the earlier pendency is not tenable in the face of the subsequent authoritative ruling. Disposition and consequential relief Having applied the authoritative interpretation of Section 67, the impugned demands and orders premised on inclusion of the free-supplied chemicals in taxable value cannot be sustained. The orders below are set aside and the appeals allowed with consequential relief as per law.