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TMI Blog2023 (5) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... T ] observed that a demand made under a particular category cannot be sustained under a different category. It is not possible to sustain the impugned order dated 08.06.2017 passed by the Commissioner - appeal allowed. - Service Tax Appeal No. 51545 of 2017 - Final Order No. 50587/2023 - Dated:- 26-4-2023 - MR. DILIP GUPTA, PRESIDENT AND MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Shri A.K. Batra, Chartered Accountant Shri Ishaan, Advocate for the Appellant. Shri Rajeev Kapoor, Authorized Representative for the Respondent. ORDER The order dated 08.06.2017 passed by the Commissioner of Service Tax, Delhi-I to give effect to the order dated 28.09.2016 passed by the Tribunal in the appeal that was filed before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service tax has been confirmed under works contract service though the show cause notices that were issued to the appellant proposed demand under erection, commissioning or installation services. 6. It has been repeatedly held that a demand cannot be confirmed under a category not proposed in the show cause notice. 7. A Division Bench of the Tribunal in M/s Gurjar Construction as Commissioner of Central Excise, Jaipur II [ 2019 (5) TMI 717-CESTAT, New Delhi ] examined such a position and after placing reliance on the decisions of the Supreme Court in Hindustan Polymers Company Ltd. Vs Collector of Central Excise, Guntur [ 1996 (12) TMI 84 Supreme Court ] and Reckitt Colman of India Ltd Vs Collector of Central Excise [ 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts, the appropriate order for the Tribunal to have passed was to have set aside the demand and left it open to the Revenue to proceed against the appellants, as permissible under the law. The Appellants would then have had the opportunity of meeting the precise case made out by the Revenue. 15. This is what was also observed by the Supreme Court in Reckitt Colman of India in paragraph 3 of the judgment which is reproduced below: 3. It will be remembered that the case of the Revenue, which the appellant had been required to meet at every stage from the show cause notice onwards, was that the said product was a preparation based on starch. Having come to the conclusion that the said product was not a preparation based on starch, the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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