2015 (5) TMI 636

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....als) in the case of M/s. B.M. Constructions, Aurangabad. Miscellaneous application bearing No. ST/MA(Ors)1883/10 is also filed by Revenue in respect of first Order-in-Appeal seeking to include additional grounds of appeal. 2. As the issue is common, all the appeals are taken up together. 3. The issue relates to admissibility of CENVAT credit on three counts viz. (i) non inclusion of value of steel, cement and other materials received free of cost by respondent from their customers while arriving at the value of construction service for payment of service tax on the construction services provided by them, (ii) availment of CENVAT Credit on input service during March 2006 in violation of condition of notification 1/2006-ST dated 01.03.2....

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....uld have been availed under notification 12/2003-ST dated 20.06.2003 which exempts the value of service equal to the value of goods and materials sold by the service provider to the recipient of service. 4.1 In the first appeal against Order-in-Appeal dated 23.7.2009, Revenue prays for imposition of penalties under Section 78. On merits, we find that the issue of inclusion of free material provided to the service provider by the customer and computation of value thereof for the purpose of payment of service tax by the service provider is decided by the Larger Bench of this Tribunal in the case of Bhayana Builders (P) Ltd. & others vs. CST, Delhi   2013-TIOL-1331-CESTAT-Del.LB in favour of the assessee. As a matter of judicial d....

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.... and interest of Rs. 1,91,084/- totaling Rs. 4,69,339/-. 6.1 The amount of Rs. 2,75,255/- is 25% of the penalty of Rs. 11,01,017/- which was set aside by Commissioner (Appeals). We have already set aside the penalty on the first issue. As regards issues at (ii) and (iii) in para 3, we find that the amounts were deposited before issue of show-cause notice. Therefore penalty is not imposable under Section 78 because show-cause notice was not required to be issued under Section 73(3) as no mens rea for wilfull suppression of facts has been established. Therefore, refund of Rs. 2,75,255/- should be granted. We order so. 6.2 As regards the interest of Rs. 1,94,084/- on the service tax demand of Rs. 9,42,920/-, we have already set aside the....