FOC material supplied by service recipient should be included in gross value of works contract : SC

FOC material supplied by service recipient should be included in gross value of works contract : SC

As per CESTAT Order Number A/89898 of 2017/STB where material was supplied by service recipient free of cost, the same is liable to be included in gross value of works contract and service tax is to be paid on the same.

Supreme Court of India vide its order dated 3rd December 2018 has affirmed the Order of CESTAT.

This Order of CESTAT is also relevant in GST Regime as well.

The Extract of CESTAT Order is given below :

"Therefore there was no reason for not including the value of free supply material, this facts also reveal that the appellant having knowledge about the inclusion of free supply material did not include the same and also suppressed the said fact from the department. It is also observed that they did not disclose the value of the free supply material in their ST-3 returns. This is not the case where the issue was under litigation or there is any interpretation of law involved for the reason that all the judgments relied upon by the appellant are on different facts and as per the Works Contract Rules, the provision is clear that the material used whether supplied for consideration or otherwise, should be included, therefore there is no ambiguity in the legal provision. Accordingly the demand of extended period is sustainable, for the same reason the penalty imposed under Section 78 was also imposed legally by the lower authority. As per our above discussion we are of the considered view that the impugned order is sustainable, therefore the same is upheld. The appeal is dismissed."