Dynamic Prestress Project & Services P. ... vs Commissioner Of Central Excise, Nashik

(Arising out Order-in-Appeal No. AKP/118/NSK/2009 dated 17.12.2009 passed by the Commissioner of Central Excise (Appeals), Nashik)

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr P.R. Chandrasekharan, Member (Technical)

1. Whether Press Reporters may be allowed to see No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Yes of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

Dynamic Prestress Project & Services P. Ltd. Appellant

Vs.

Commissioner of Central Excise, Nashik Respondent

Appearance:

Ms. Padmavati Patil, Advocate for the appellant Shri A.B. Kulgod, AC (AR) for the respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical)

Date of hearing : 04/02/2015 Date of decision : 04/02/2015

O R D E R No:..

Per: M.V. Ravindran:

This appeal is directed against Order-in-Appeal No. AKP/118/NSK/2009 dated 17.12.2009.

2. Heard both sides and perused the record.

3. On perusal of the record, it transpires that the appeal is filed for rejection of refund claim by the Adjudicating Authority and as held by the first appellate authority. We find that the appellant had deposited the amount of service tax liability on being pointed out by the audit department along with interest. The audit objection was raised in respect of non-inclusion of the value of the free supply of material received by the appellant in executing the contract under the category of Commercial and Industrial Construction Services. We find that the issue is no more res integra, as the larger bench of the Tribunal in Bhayana Builders P. Ltd. 2013 (32) STR 49 (Tri-LB) has held that cost of free supply of material be considered as gross value of renting the services. In view of the above, we hold that the impugned order is not sustainable and is liable to be set aside and we do so.

4. The impugned order is set aside with consequential relief in accordance with law.

(Dictated in Court)

(P.R. Chandrasekharan) (M.V. Ravindran) Member (Technical) Member (Judicial)

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