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TMI Blog2024 (1) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... o be noted that the Commissioner (Appeals) dropped the demand for the period prior to 01.06.2007 and also set aside the penalties imposed upon the appellant under section 80 of the Finance Act, 1994 [the Finance Act]. 2. A perusal of the records indicate that a show cause notice dated 23.04.2010 was issued to the appellant for the period from 2004-2005 to 2008-2009 proposing demand of service tax under erection, commissioning or installation service as defined under section 65 (39a) of the Finance Act and made taxable under section 65 (105) (zzd) of the Finance Act. The Additional Commissioner, by order dated 03.02.2012, confirmed the demand of service tax with interest and penalty invoking the extended period of limitation contemplated un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service tax for the period post 01.06.2007 under works contract service, even though the show cause notice had proposed the demand under erection, commissioning or installation service. Though this ground has not been urged by the appellant in this appeal, but by invoking the provisions of Rule 10 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, it is considered appropriate to examine whether the Commissioner (Appeals) could have confirmed demand of service tax under a category of service which was not even proposed in the show cause notice. 7. It would, therefore, be appropriate to reproduce Rule 10 of the CESTAT (Procedure) Rules, 1982, which is as follows:- "Rule 10: Grounds which may be taken in ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der work construction service by the Commissioner (Appeals) for the period post 01.06.2007. The impugned order, therefore, deserves to be set aside for this reason alone since the demand made under a particular category of service found to be incorrect in a subsequent proceeding, cannot be sustained. This is what was observed by the Supreme Court in Hindustan Polymers Co. Ltd. vs. Collector of C. Ex., Guntur Company [1999 (106) E.L.T. 12 (S.C.)] and the relevant portion of the judgment is reproduced below: "6. While we appreciate the Tribunal's desire to do complete justice and mould the relief in that direction, we think that, in the circumstances, the Tribunal should not, in this case, have passed an order which proceeded upon a bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Tribunal in Ashish Ramesh Dasarwar vs. Commissioner of Central Excise & Service Tax, Nagpur [2017-TIOL-3230-CESTAT-MUM] also needs to be referred. 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." 13. The Commissioner (Appeals) proceeded to confirm the demand under works contract service for the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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