Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2022 (4) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (4) TMI 878 - AT - Service TaxScope of SCN - demand has been raised in the category of Cleaning Services and Erection, Commissioning and Installation services which were never proposed in the SCN - no break-up of the tax amount demand has been provided in the impugned order - renovation of hospital under the category of Commercial or Industrial activity - Works Contract Service - Suppression of facts or not - extended period of limitation - HELD THAT:- Nowhere in the entire Show Cause Notice (SCN), the demand of service was proposed in the category of Cleaning Services and Erection, Commissioning and Installation services. However, the demand has been confirmed under the category of Cleaning services as is evident from para 4.56 of the impugned order. Further the demand has also been raised in the category of Erection, Commissioning and Installation services - The Hon’ble Supreme Court in the case of CCE VERSUS SHITAL INTERNATIONAL [2010 (10) TMI 19 - SUPREME COURT] has held that the Revenue cannot be permitted to build up a new case which was not taken in the Show Cause Notice which is the foundation of the proceedings against the assessee. Therefore, the demand in the aforesaid categories cannot be sustained and thus, set aside. It is further found that vide specific exemption notification being Notification No.24/2009 dated 27.07.2009, introduced to exempt the activity of maintenance or repair of road retrospectively for the period from 16.06.2005 onwards, a fact that the Ld. Commissioner has completely ignored and therefore, the demand is liable to be set aside - the Ld. Commissioner has observed in para 4.9 of the OIO that since the assessee has not chosen to seek registration under the said category of works contract service, the services would be classifiable under other categories as per SCN even though the same is classifiable under Works Contract Service. In the case of PES ENGINEERS PVT. LTD VERSUS CCE&ST, HYDERABAD-I AND (VICE-VERSA) [2017 (7) TMI 687 - CESTAT HYDERABAD] the issue involved for demand pertaining to the period January 2005 to March 2012 under Erection Commissioning and Installation Service. The Tribunal has held that the services were classifiable under “Works Contract Service” and not “Erection Commissioning and Installation Service”, demand could not be sustained. Further, in the case of M/S. URC CONSTRUCTION (P) LTD. VERSUS COMMISSIONER OF CENTRAL, SALEM [2017 (1) TMI 1363 - CESTAT CHENNAI] wherein there was an identical issue, amongst others, whether demand could be upheld for the period June 2007 to September 2008 under CICS, in case where the construction service rendered by the assessee also involved supply of materials and the classification of Works Contract Services was not proposed in the SCN for raising demand. The demand raised in the impugned order cannot be sustained and hence, set aside. In so far as the Revenue’s appeal is concerned, even if the contention that the services for road were classifiable under Repair or Maintenance service, in that case also the same were wholly exempted vide Notification No.24/2009 dated 27.07.2009 retrospectively for the period from 16.06.2005 onwards. Hence, no demand can be sustained. Appeal allowed - decided in favor of appellant.
|