2023 (4) TMI 1017 - AT - Service Tax

Demand of service tax under different head (which was not proposed in SCN) - case of appellant is that it was not open to the Commissioner (Appeals) to confirm the demand under a head that was not even proposed in the show cause notice - HELD THAT - It is not disputed that the demand has been confirmed under categories not proposed in the show cause notice. This issue was also examined at length by a Division Bench of the Tribunal in INDIA GUNITING CORPORATION VERSUS COMMISSIONER OF CENTRAL TAX 2021 (2) TMI 400 - CESTAT NEW DELHI where it was held that Commissioner was not justified in confirming the demand of service tax under the category of works contract for the period post-June 1 2007 even if the levy of service tax was not exempted under Notifications since the show cause notice that demand it service tax under the three categories namely (i) commercial or industrial construction (ii) construction of complex and (iii) management maintenance or repair. Once a show cause notice has proposed a demand under a particular category the Commissioner (Appeals) could not have confirmed the demand under a category not specified in the show cause notice. In view of the aforesaid decision of the Tribunal passed by the Commissioner (Appeals) cannot be sustained and is accordingly set aside - Appeal allowed.

Summary

Issues involved:
The sole issue in this appeal is whether the demand can be confirmed under a head not proposed in the show cause notice.

Details of the Judgment:

Issue 1: Confirmation of demand under different categories
The show cause notice proposed a demand under 'maintenance or repair service', but the demand was confirmed under 'works contract service', 'supply of manpower/supply of tangible goods', and 'cleaning service'. The appellant argued that it was not permissible for the Commissioner (Appeals) to confirm the demand under a head not mentioned in the show cause notice. The Tribunal cited previous decisions to support this argument, emphasizing that a demand made under a specific category cannot be confirmed under a different category. The Tribunal set aside the order confirming the demand under a different category, stating that the Commissioner (Appeals) could not have confirmed the demand under a category not specified in the show cause notice.

Decision and Conclusion:
The Tribunal held that the Commissioner was not justified in confirming the demand under a category different from what was proposed in the show cause notice. Therefore, the order passed by the Commissioner (Appeals) confirming the demand was set aside, and the appeal was allowed.