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2023 (4) TMI 607 - AT - Service TaxWrongful availment of benefit of notification dated March 01, 2006 - benefit available only, if CENVAT credit on input services and capital goods had not been taken by the assessee (as assessee has also availed credit in respect of commercial or industrial construction service) - demand under works contract service, valid or not - HELD THAT:- 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 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.
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