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TaxTMI 
TaxTMI 
TaxTMI 
2017 (11) TMI 1464
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.... goods and earth moving equipments such as excavators, dumpers, rippers etc. During the period under dispute (April 2005 to March 2009), the assessee supplied such equipments to M/s Ambuja Cement Limited (ACL) for use in the mining work and M/s Mistri Construction (MCPL) for use in the construction works at M/s Bhushan Steel. Separate contracts were entered into by the assessee with their respective service receivers for different periods of time. As per the terms of these contracts, the diesel for use in the equipments supplied by the assessee was supplied free by the customers. The department issued show cause notice dated 30.4.2010 proposing to charge service tax for the disputed period under the categories of site formation, clearance, ....
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....nd is not sustainable. ii) On behalf of the assessee, he submitted that the service tax demand amounting to Rs. 1.27 crore which has been confirmed in the impugned order is not being challenged by them. iii) The service tax demand which is confirmed w.e.f. 16.5.2008 has also included the value of free supply of diesel. It is fairly well settled through various decisions of the Tribunal as well as courts that there is no basis in law for including the value of material supplied free of charge. Hence he submitted that such demands may be set-aside. iv) He also raised the ground of time bar. 6. Sh. Amresh Jain, Ld. DR summarised the grounds of the Revenue's appeal as follows: i) The adjudicating authority has dropped the demand for th....
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....uired to be included for purposes of levy of service tax. We note that this issue is no longer res integra and stands settled in favour of the assessee. In the case of CCE Vs Gandhar Rock vide Final order no.ST/A/50807/2017-CU(DB) dated 08.02.2017 observed as follows: 5. After hearing both the parties and on perusal of record, it appears that the issue is squarely covered in favour of the appellant as per the ratio laid down in the case of CCE Vs. M/s S.B. Construction Pvt. Ltd.-2014-TIOL-1654-CESTAT-DEL, where it was observed as under: "5. The issue of includibility of the value of free supplies in the gross amount charged has been decided by the Larger Bench of CESTAT in the case of Bhyana Builders (P) Ltd. Vs. Commissioner of Service....
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....cision, we are of the view that there is no justification for adding the value of free supply diesel for purposes of levy of service tax. 9. Next we consider the service tax demand arising out of the assessee's contract with M/s ACL for supply and deployment of earth moving equipments such as excavators, bulldozers etc for use in mining work. The show cause notice had proposed levy of service tax on the consideration received by the assessee under the category of site formation and excavation service. The adjudicating authority, after considering the terms of the contract with M/s ACL came to the conclusion that the contract was a composite one but the essential character of the contract is hiring of equipments and accordingly the same is ....
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....the contracts entered with the service receiver as well as exact nature of services provided by them. The adjudicating authority could get further details only at the time of adjudication and after due consideration of the reply furnished, he concluded that the service rendered by the appellant to M/s ACL will be rightly classifiable under supply of tangible goods service. In any case we note that the rate of service tax is one and the same for both services. Hence it cannot be said that the impugned order has travelled beyond the SCN. Consequently we dismiss the appeal of the assessee on this ground. 13. The SCN has also proposed demand of service tax under the category of cargo handling service for a part of the work executed by the asse....