AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (4) TMI 909
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....ed 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. With regard to the issue of free supply, Ld. Counsel for the applicant submits that the same are not includable in the assessable value, in the light of the decision of Larger Bench of this Tribunal in the case of Bhayana Builders Pvt. Limited Vs. Commissioner - 2013 (32) STR 49 (Tri. LB). He also relied on the decision in the case of Inox Air Products Limited Vs. Commissioner - 2012 (28) STR 570 (Bom.). For the amount reimbursed to M/s. Bharti Airtell for providing 1200 seats and staff welfare charges, it is the contention of the applicant that these service have been received by the applicant and they have paid the service tax to M/s. Bharti Airtell, therefore, these services are input service for the applicant and do not form part of service assessable to value, therefore, no service tax is payable. 3. On the other hand Id. AR opposed the contention of the Id. Counsel. For the amounts reimbursed to M/s. Bharti Ai....
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....plies to be used by the noticee, free of coste The Revenue felt that these free of cost services were consideration received in kind and the cost of these services should form part of the gross taxable value towards payment of service tax. Two show cause notices were issued and the same were adjudicated, resulting in confirmation of demand of Rs. 2,03,57,468/-and Rs. 1,56,83,192/- along with 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 vs. CCE-2013 (32) STR 49 (Tri.-LB) (2) Interconti....
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.... 1200 for 1200 seats as per mutually agreed terms and condition contained in Appendix 3B to this Addendum 2. c) The managed service provider (MSP) will reimburse Airtel for cost of these 1200 seats as per mutually aqreed upon costs as contained in Appendix 3A to this Addendum 2. d) The managed service provider (MSP) will reimburse Airtel for cost of these 1200 seats towards office and Allied Infrastructure with effect from April 1, 2010. e) The managed service provider (MSP) will reimburse Airtel for cost of these 1938 seats towards staff welfare expenses with effect from April 1, 2010. f) The allocation of Office and Allied Infrastructure shall be effective for one year tenure effective from April 1, 2010 upto March, 2011, subject to the terms and conditions as detailed in Appendix 3A to this Addendum 2. 7. The above arrangement suggests that such facilities/infrastructure have a well-defined cost per seat per month towards office and infrastructure and office welfare which M/s Airtel Ltd. has already worked out and as per addendum, M/s. Airtel Ltd. will charge the appellant for office/infrastructure for 1200 s....
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.... 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 and recovery thereof stayed during pendency of the appeal. (DEVENDER SINGH) MEMBER (TECHNICAL) As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon'ble President to refer the matter to the third member to resolve the following issues: POINTS OF DIFFERENCE Whether the appellants be granted full waiver of pre-deposit of Service Tax, fine and penalty for stay of operation of impugned order as held by Member (Judicial). OR Whether the appellants are required to make a pre....
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....Airtel to the appellant are infrastructural support to the appellant. Admittedly this infrastructural support is an essential requirement for providing taxable service of management, maintenance and repair service by the appellant to the client M/s Airtel. For such infrastructural support whatever money the appellant is paying to M/s Airtel is added in the taxable value at the hands of the appellant. However, the consideration worked out for such infrastructural support is only with reference to 1200 seats for which alone M/s Airtel are charging consideration. There is no evidence as per the record that the remaining seats for which no monetary consideration is charged or collected by M/s Airtel had influenced the taxable value on the part of the appellant in providing management, maintenance and repair service. It is only an inference that when M/s Airtel was charging for some seats and not charging for other seats, in respect of such seats the charges not collected should be considered as non-monetary consideration. This aspect is debatable and requires closer scrutiny. At the present stay stage, it is to be noted that on such debatable point pre-deposit almost 30% is not justifi....