TaxTMI 
TaxTMI 
2017 (11) TMI 1576
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....ed also providing office space to the applicant free of cost and in some cases, M/s. Bharti Airtell Limited is charging infrastructure charges/ staff welfare charge from the applicant. Revenue is of the view that the free services provided by M/s. Bharti Airtell and the services for which M/s. Bharti Airtell have charged certain amounts from the applicant are includable in the assessable value of the services provided by the applicant. Therefore, the demand of service tax has been confirmed on the differential value of service alleged to have been supplied by the applicant, along with interest and various penalties have also been imposed. The applicant is before us seeking waiver of pre-deposit of demands so confirmed. 2. Wit....
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.... tax, interest and penalties is granted. 5. With regard to the amount reimbursed to M/S. Bharti Airtell by the applicant, M/s. Bharti Airtell has paid the service tax and same has been taken as input service by the applicant. The said amount is of input service received by the applicant and the same form part of their taxable service provided by theme Therefore, prima-facie, on this amount the applicant is not liable to pay any service tax. In these circumstances, waiver of pre-deposit of entire amount of service tax, interest and penalties is granted to the applicant during the pendency of appeal. (Order dictated and pronounced in the court) PER: DEVENDER SINGH The brief facts of the case are that the appe....
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....ith interest and penalties under Sections 76, 77 and 78 of the Finance Act. Aggrieved from the same, the appellant have filed this appeal alongwith the stay application, which is presently before us. 2. Learned Advocate for the appellant submits that the facilities provided by the service receiver are normal facilities which are provided by the clients to workers undertaking repair/maintenance service in the premises, like electricity connection, light/fans at the premises, infrastructure facilities for a workman like plumber, carpenter etc. These services are provided free of cost. Use of these facilities by workman is just incidental. He relied on the following judgments of this Tribunal: (1) Bhayana Builders (P) Limited....
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....ssessed by the appellant. 6. I find that comparison of a plumber or repair engineer with the facts of the present case is not proper as use of facilities by such worker is indeed just incidental. Whereas in the present case, the scale, scope, dimension of use and part payment of facilities, which were used by the M/s. Bharati Airtel Ltd. themselves hitherto, and have been allowed to be used when the work was outsourced by the appellant show that it is not incidental. It is seen that the cost is well-defined in the addendum dated 5.8.2010, wherein Article 2 reads as below: 4. Article 2, (Office Space and Allied Infrastructure ) of the Addendum 1 shall be amended to read as: a) Aitel has agreed to provide Offi....
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.... that consideration charged by them was composite, inclusive of consideration for bundle of services provided by them. The fact that addendum provides costing of some seats to be paid by the recipient of the services and other seats completely free of cost, and such services are required for performance of MSA, itself shows that free of cost facilities are a non-monetary consideration and the cost of same will therefore have to be included in the value of taxable service rendered. 8. The case of Intercontinental Consultants & Technocrats Pvt. Limited Vs, UOI (supra) relied upon by the appellants dealt with the question of inclusion from value of certain expenditure or cost incurred by the service provider in the course ....
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....red on payment of duty. Hence it could not be considered in determining the value of taxable service. In the present case, admittedly, the free of cost facilities infrastructure provided to the appellant is for rendering the taxable service and there is clear nexus between the two. Hence, Prima-facie, the cost of facilities infrastructure is includible in the taxable value. 11. In view of above, the appellants have not made out a prima facie case for complete waiver of pre-deposit of dues adjudged. Accordingly, I direct the appellant to make a pre-deposit of Rs. 1 Crore and report compliance within eight weeks. On such compliance, pre-deposit of balance amount of the Service Tax, interest and penalty shall stand waived ....