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2023 (3) TMI 1128 - AT - Service TaxLevy of Service tax - Industrial or Commercial Construction Service - service of industrial painting job - scope of SCN - HELD THAT:- The learned Commissioner (Appeals) travelling beyond the show cause notice and adjudication order decided that the service tax is payable under the head of Management, maintenance and repair service. This approach of the learned Commissioner (Appeals) is absolutely illegal and incorrect. The learned Commissioner (Appeals) has no power to create a new case before him which is not flowing from the show cause notice therefore, on this ground alone the impugned order is not sustainable. However, since the learned Commissioner (Appeals) has upheld the demand under Management, maintenance and repair service and not under Industrial or Commercial Construction Service the matter needs to be reconsidered by the learned Commissioner (Appeals). The learned Commissioner (Appeals) shall decide the appeal considering the service under Industrial or Commercial Construction Service. Accordingly, the impugned order is set aside - Appeal is allowed by way of remand to the Commissioner (Appeals) for passing afresh Order-in-Appeal preferably within a period of two months from the date of this order.
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