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TMI Blog2023 (4) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision rendered by the Tribunal in INDIA GUNITING CORPORATION VERSUS COMMISSIONER OF CENTRAL TAX [ 2021 (2) TMI 400 - CESTAT NEW DELHI] as it was held that a demand proposed under a particular category cannot be confirmed under a different category. It would not be possible to sustain the order dated February 09, 2017 passed by the Commissioner confirming the demand under the works contract service for the period w.e.f. June 01, 2007 - Appeal allowed. - Service Tax Appeal No. 51417 of 2017 - FINAL ORDER NO. 50403/2023 - Dated:- 21-3-2023 - MR. DILIP GUPTA, PRESIDENT AND MS. HEMAMBIKA R PRIYA, MEMBER (TECHNICAL) Mr. P.K. Sahu, Advocate for the Appellant Shri Radhe Tallo, Authorized Representative for the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, after setting aside the order dated September 07, 2009 remanded the matter to the adjudicating authority for a fresh consideration in the light of the aforesaid decision of the Supreme Court. The relevant portion of the order passed by the Tribunal is reproduced below: 2. After hearing both sides, we find that the dispute in the present appeal relates to the availment of abatement of 67% in terms of notification No. 1/2006, which stand denied on the ground that the appellant have simultaneously availed the cenvat credit of duty. At this stage, the contention of the learned advocate appearing for the appellant is that the service itself was not taxable at all inasmuch as the same was work contract service and the issue now sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is would not make it infructuous. The Commissioner, therefore, observed that the service provided by the appellant would be taxable during the aforesaid period. The relevant portion of the order dated February 07, 2017 passed by the Commissioner is reproduced below: 4.6 In light of the above, following the Apex Court order, I conclude that the activity undertaken by the assessee merits to be considered a composite contract falling in category of works contract and the same was not leviable to Service Tax prior to 01.06.2007. Xxxx Having come to the conclusion that the service rendered was works contract service, the contention of the assessee that for the period 01.06.07 to 30.09.07, the show Cause Notice does not classify the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercial or industrial construction service since the appellant had also availed CENVAT credit. The show cause notice did not allege that the appellant had undertaken works contract service. On remand, the Commissioner has confirmed the demand under works category holding that it could be done even if the show cause notice did not propose that the activity carried out by the appellant would fall under works contract service. This view taken by the Commissioner is contrary to the decision rendered by the Tribunal in India Guniting Corporation as it was held that a demand proposed under a particular category cannot be confirmed under a different category. The relevant portion of the decision of the Tribunal is reproduced: 20. That submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that the confirmation of demand under the category of WCS will not be proper particularly in view of the decision of the Tribunal in case of Ashish Ramesh Dasarwar (supra) wherein Tribunal has taken the view that demand for Service Tax is to be set aside if the Show Cause Notice proposed a classification different from WCS for construction activity. 21. A Division Bench of the Tribunal in M/s Gurjar Construction vs Commissioner of Central Excise, Jaipur II [ 2019(5) TMI 717-CESTAT, New Delhi] also examined such a position and observed that a demand made under a particular category cannot be sustained under a different category. 8. Thus, for the reasons stated in the aforesaid decision of the Tribunal, it would not be possi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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