CESTAT sets aside demand under different service category than originally proposed in show cause notice

The CESTAT New Delhi set aside the Commissioner (Appeals) order dated 28.03.2018 and allowed the appeal. The case involved classification dispute between works contract service versus erection, commissioning and installation service. The SCN alleged appellant provided erection, commissioning or installation service, but Commissioner (Appeals) confirmed demand under works contract service for post 01.06.2007 period. CESTAT held the demand under a different service category than originally proposed in SCN cannot be sustained, making the order unsustainable on this ground alone.

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Issues involved:
The issues involved in the judgment are the confirmation of demand of service tax post 01.06.2007 under "works contract service", the dropping of demand for the period prior to 01.06.2007, penalties imposed under section 80 of the Finance Act, and the invocation of the extended period of limitation.

Confirmation of Demand under Works Contract Service:
The Commissioner (Appeals) confirmed the demand of service tax for the period post 01.06.2007 under works contract service, despite the show cause notice proposing the demand under erection, commissioning, or installation service. The appellant argued that the demand for the period post 01.06.2007 should be set aside as the extended period of limitation was not justified. The Tribunal examined whether the Commissioner (Appeals) could confirm the demand under a category of service not proposed in the show cause notice, as per Rule 10 of the CESTAT Rules, 1982.

Legal Grounds and Precedents:
The Tribunal considered legal precedents, including the Supreme Court's decisions in Hindustan Polymers Co. Ltd. vs. Collector of C. Ex., Guntur Company and Reckitt & Colman of India Ltd. vs. Collector of Central Excise, emphasizing that demands made under a specific category of service must align with the proceedings. The Mumbai Tribunal's decision in Ashish Ramesh Dasarwar vs. Commissioner of Central Excise & Service Tax, Nagpur was also referenced, highlighting that demands raised under the wrong head of service cannot be sustained.

Setting Aside the Commissioner's Order:
The Tribunal concluded that the nature of service rendered by the appellant was works contract service both before and after 01.06.2007, not erection, commissioning, or installation service as alleged in the show cause notice. Therefore, the order passed by the Commissioner (Appeals) confirming the demand under works contract service for the period post 01.06.2007 was set aside. The Tribunal held that demands made under incorrect categories of service cannot be upheld in subsequent proceedings.

Decision and Conclusion:
In light of the above analysis, the Tribunal set aside the Commissioner (Appeals)'s order dated 28.03.2018 and allowed the appeal. The judgment highlighted the importance of aligning demands with the specific category of service alleged in the show cause notice, emphasizing procedural fairness and adherence to legal principles.

Separate Judgment:
No separate judgment was delivered by the judges in this case.

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