TaxTMI 
TaxTMI 
2023 (12) TMI 849
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....e entitled to the benefit of cum tax value, the Tribunal decided the issue in favour of the department holding that "Respondent have not produced evidence to the effect that the considerations received were inclusive of service tax." This part of the order of the Tribunal was assailed by the respondent before the Supreme Court and by judgment and order dated 24.01.2023, the Supreme Court partly allowed the appeal and remanded the matter to the Tribunal for a fresh adjudication of this issue after taking into consideration the relevant material/documents as may be produced by the parties. The part of the judgment of the Supreme Court relevant for the purpose of this appeal is reproduced below: "5. The short question that falls for c....
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.... "(i) Copy of Tender Document for construction of dwelling units at Patiala, Punjab. Reference is made to page 10 of the Tender documents which contains the Special Conditions for the tender. Special Condition No. 10 clearly states that "rates quoted shall be deemed to be for the finished work to be measured at site. Tenderer must include in their rates all taxes applicable on the date of submission of tender levied by the Central Government or any State Government or local authority, if applicable. No separate claim in respect of the above shall be entertained by the developer." (ANNEXURE-4) The Paper Book along with the appeal filed before the Commissioner of Central Excise (Appeals). Special reference is made to Annexure-6 to....
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.... was required to be brought on record. 6. Shri A.K. Prasad learned counsel assisted by Ms. Surbhi Sinha, appearing for the respondent pointed out that what was filed before the Adjudicating Authority and the Commissioner (Appeals) were copy of the tender documents and the letter dated 07.06.2010 submitted to the adjudicating authority. Learned counsel submitted that the tender documents for construction of the dwelling units would amply demonstrate that the rates quoted shall be deemed to be for the finished work to be measured at site and that the Tenderer must include in their rates taxes levied by the Central Government or any State Government or local authority as applicable on the date of submission and no separate claim shall be en....
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....d." 10. It is against this part of the order of the Tribunal that the respondent had preferred an appeal before the Supreme Court and the Supreme Court has remanded the matter to the Tribunal for a fresh consideration of this issue after taking into consideration the relevant materials/documents produced by the parties. 11. At this stage, it would be useful to reproduce the finding recorded by the Commissioner (Appeals) in the order dated March 15, 2011 which had been assailed by the Department before the Tribunal. The finding recorded by the Commissioner (Appeals) is as follows: "I find that since the appellant has received gross amount of Rs. 9,10,96,473/- i.e inclusive of service tax and VAT during the period 2006-07 to 20....
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....quoted in the tender shall include all charges for labour, double scaffolding, centering, materials, water and electric charges, temporary plumbing, hire for any tools and plants including dumpy level, theodolite, statutory field testing equipments, etc., sheds for materials, marking out and clearing of site, as mentioned in the specifications. Rates quoted shall be deemed to be for the finished work to be measured at site. Tenderer must include in their rates all taxes applicable on the date of submission of tender levied by the Central Government or any State Government or local authority, if applicable. No separate claim in respect of the above shall be entertained by the Developer." 14. It is apparent from the said condition that the....