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of <h1>60% abatement under Service Tax (Determination of Value) Rules, 2006 upheld; materials free not valued; s.78 and s.77(2) relief</h1> CESTAT (Allahabad) - AT allowed the appeal, holding the Appellant-Assessee entitled to the 60% abatement under the Service Tax (Determination of Value) ... Eligibility for abatement of 60% as per Valuation Rules - Works Contract Services provided by the Appellant with material - benefit of threshold is available to the Assessee after availing the abatement/exemption or not - HELD THAT:- It is found that the Commissioner (Appeals) has observed that in all the work orders, the service recipients have issued free supply of material for execution of foundation work performed by the Appellant. Since there is no ambiguity on the facts that free supply material have been provided by the service recipient to the contractor for execution of the foundation work, the denial of abatement of 60% is not justified - the Appellant-Assessee is eligible to claim abatement of 60% as per Service Tax (Determination of Value) Rules, 2006. Further, after availing the abatement, if the taxable portion is below the threshold exemption, then there would be no liability of payment of Service Tax. The Hon’ble Supreme Court in the case of Commissioner of Service Tax V/s M/s Bhayana Builders (P) Ltd. [2018 (2) TMI 1325 - SUPREME COURT] has 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.' The demand of Service Tax and the penalties imposed under Section 78 & 77(2) of the Finance Act, 1994 are also set aside - appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether abatement of 60% under the Service Tax (Determination of Value) Rules, 2006 is available to a service provider rendering works contract services where materials are supplied free of cost by the service recipient. 2. Whether the benefit of threshold exemption applies after availing the abatement/exemption, i.e., if the taxable portion post-abatement falls below the threshold, whether there is no liability to pay service tax. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Availability of 60% Abatement where service recipient supplies material free of cost Legal framework: Valuation for service tax is governed by Section 67 of the Finance Act (as explained in the Judgment) and the Service Tax (Determination of Value) Rules, 2006 which provide for abatement for certain works contract services. The concept of 'gross amount charged' and the nexus requirement between amount charged and taxable service is central to valuation. Precedent Treatment: The Tribunal follows the ratio of a binding Supreme Court decision (discussed in the judgment) which interpreted Section 67 to exclude the value of goods/materials supplied free of cost by the service recipient from the gross amount charged for valuation of taxable services. Interpretation and reasoning: The Court reasons that the words 'gross amount charged' and 'charged ... for such service provided' restrict valuation to amounts actually charged by the service provider as consideration for the taxable service. Materials supplied free by the recipient are neither 'charged' by the provider nor consideration for the taxable service and therefore cannot be included in gross value. The factual matrix in the record establishes that the service recipients supplied cement, reinforcement steel, T&P, form boxes, bolts, nuts etc., free of cost; hence, those supplies do not enter into the taxable gross amount. Ratio vs. Obiter: The holding that free supplies by the service recipient are excluded from valuation is treated as ratio-a binding principle applied to the facts. Observations on the textual meaning of 'gross amount charged' and the nexus requirement are integral to that ratio rather than mere obiter. Conclusions: The Appellant is eligible to claim 60% abatement under the Valuation Rules for works contract services where materials were supplied free by the service recipient; denial of such abatement was not justified on the facts. Issue 2 - Applicability of threshold exemption after availing abatement Legal framework: The valuation regime contemplates computation of taxable value after allowance of abatement/exemption; threshold exemption operates on the taxable portion as determined after applicable abatements. Precedent Treatment: The Tribunal applies the same Supreme Court reasoning (referred to above) regarding inclusion/exclusion of free-supplied materials and recognizes that abatement reduces the taxable component which is then compared to the threshold. Interpretation and reasoning: Once abatement is correctly allowed and the taxable portion (i.e., gross amount charged less abatement/exclusions) falls below the statutory threshold for levy, there is no liability to pay service tax. The Tribunal links the valuation exclusion of free-supplied materials directly to the subsequent computation for threshold applicability: the threshold must be applied to the taxable value post-abatement. Ratio vs. Obiter: The conclusion that no service tax liability arises where the post-abatement taxable value falls below threshold is applied as ratio to resolve the appealer's liability; related commentary about sequential application (valuation ? abatement ? threshold) is explanatory but necessary to the holding. Conclusions: After availing the 60% abatement, if the taxable portion is below the threshold exemption, no service tax liability arises; consequently, demands based on inclusion of free-supplied materials are unsustainable. Penalties and consequential relief Legal framework: Provisions authorizing imposition of penalties (Sections 77(2) and 78 of the Finance Act) and interest (Section 75) were invoked by the revenue based on the original demand. Precedent Treatment and reasoning: Because the primary tax demand based on inclusion of free-supplied materials is set aside under the binding interpretative principle applied from the Supreme Court decision, consequential penalties predicated on that demand are also unsustainable. Ratio vs. Obiter: The setting aside of penalties and demand is a direct consequence of the primary legal holding and therefore constitutes part of the dispositive ratio rather than obiter dictum. Conclusions: The service tax demand confirmed in the original order and penalties imposed under Sections 78 and 77(2) are set aside; the appeal is allowed with consequential relief as per law. Cross-References and Application to Facts Where work orders expressly show free supply of materials (cement, fabricated reinforcement steel, T&P, form boxes, bolts, nuts, etc.) by recipients, those materials are excluded from the gross amount charged for valuation purposes (see Issue 1). Following exclusion and grant of abatement, the taxable value must be tested against the threshold; if below threshold, liability extinguishes (see Issue 2). The Tribunal applied these principles to each contract in the record and quashed the confirmed demand and penalties accordingly.
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