TaxTMI 
TaxTMI 
2023 (4) TMI 607
X X X X Extracts X X X X
X X X X Extracts X X X X
...., by the said order, had confirmed the demand of service tax for the period June 01, 2007 to September 2007 with interest and penalty but had dropped the demand proposed in the show cause notice for the period prior to June 01, 2007. 2. Two show cause notices had been issued to the appellant alleging that the appellant had wrongly availed the benefit of notification dated March 01, 2006 as the exemption under the notification was available, only, if CENVAT credit on input services and capital goods had not been taken by the assessee. By an order dated September 07, 2009, the Commissioner confirmed the demand but Service Tax Appeal No. 370 of 2010 filed by the appellant before the Tribunal was allowed by order dated July 25, 2016. During th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion in the light of above referred decision of the Hon'ble Supreme Court, inasmuch as the same was not available at the time of adjudication. 4. Learned advocate appearing for the appellant agrees to the above course of action. 5. In view of the foregoing, we set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision. Needless to say that the appellant should be given an opportunity to put forth their case before the adjudicating authority and they are at liberty to refer and rely on any other decision which they may choose to. It is also clarified that we have not gone to the merits of the case and all issues are left open." 3. On remand, the Commissioner, after holding that the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e since working under the self-assessment regime was required to assess and pay the tax due on the taxable service provided by them." 4. Shri P.K. Sahu. learned counsel appearing for the appellant submitted that it was not open to the Commissioner to confirm the demand under a category which was not indicated in the show cause notice and to support the contention, learned counsel placed reliance upon a Division Bench decision of the Tribunal in India Guniting Corporation vs. Commissioner of Central Tax, New Delhi [2021(52) G.S.T.L. 174 (Tri.- Del.)]. 5. Dr. Radhe Tallo, learned authorized representative appearing for the Department, however, supported the impugned order and submitted that it does not call for any interference this appeal.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....i Tribunal in Ashish Ramesh Dasarwar vs Commissioner of Central Excise & Service Tax, Nagpur [2017-TIOL-3230-CESTAT-MUM]. The Division Bench of the Tribunal held as follows : ― 6. As regards the period after 1.6.2007, since the demand was raised under "commercial or industrial construction service" whereas admittedly the service is correctly classifiable under works contract service, the demand raised under wrong head of service cannot sustain. 7. As per above discussion, the demand raised under "commercial or industrial construction service‟ shall not sustain. Hence, the same is set aside. 20. In M/s. Choudhary Stone Crushing Company versus Commissioner of Central Excise and Service Tax - JaipurII [2019(3) TMI 38-CESTAT, ....