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TMI Blog2015 (6) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant to demand service tax under the category of construction services for the period 2004 to March, 2006. The said show cause notice was adjudicated by the adjudicated authority and demand of service tax under the category of construction services was confirmed by allowing abatement of 67% to the appellant. Thereafter, the Commissioner of Service Tax issued revised notice under section 84 of Finance Act, 1994 on the ground that adjudicating authority has made an error by allowing 67% abatement to the appellant as appellant is engaged in the activity of repair and maintenance service. The said show cause notice was adjudicated and demand of service tax under the category of repair and maintenance service has been confirmed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance service. Therefore, impugned order is to be upheld. 5. Heard the parties. Considered the submissions and examined the records. 6. We find that the initially the show cause notice was issued to the appellant to demand service tax under the category of construction services which was demanded and demand of service tax was confirmed under the said category against the appellant which appellant has not disputed. Under section 84 of the Act, learned Commissioner revised the show cause notice to change the category of the service provided by the appellant which is not permissible at this stage. Same view has been held by this Tribunal in the case of Brij Mohan Surinder Kumar (supra) wherein this Tribunal has observed as under: "7. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion." 7. Therefore, we hold that learned Commissioner has travelled beyond the scope of show cause notice by revising show cause notice which is not permissible in law. Same view has been taken b Apex Court in the case of CC, Mumbai vs. Toyo Engineering India Ltd. (supra) wherein Hon ble Apex Court has observed as under: 16. Learned counsel for the Revenue tried to raise some of the submissions which were not allowed to be raised by the Tribunal before us, as well. We agree with the Tribunal that the revenue could not be allowed to raise these submissions for the first time in the second appeal before the Tribunal. Neither adjudicating authority nor the appellate authority had denied the facility of the project import to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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