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M/s. M.L. Agrawal Construction Versus Commissioner of Customs & Central Excise, Indore (MP)

2015 (6) TMI 824 - CESTAT NEW DELHI

Demand of service tax - Construction services vs Repair and maintenance service - Whether department can be travel beyond the show cause notice - Held that:- We find that the initially the show cause notice was issued to the appellant to demand service tax under the category of construction services which was demanded and demand of service tax was confirmed under the said category against the appellant which appellant has not disputed. Under section 84 of the Act, learned Commissioner revised th .....

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d. [2006 (8) TMI 184 - SUPREME COURT OF INDIA]. - Decided in favour of assessee. - Service Tax Appeal No. 388 of 2009 - FINAL ORDER NO. A/ 51897/2015-ST - Dated:- 12-6-2015 - Hon ble Mr Ashok Jindal, Member (Judicial) And Hon'ble Mr. R K Singh, Member (Technical),JJ. For the Appellants : Shri Abhishek Jaju, Advocate For the Respondent : Shri B B Sharma, AR ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order demanding service tax from the appellant under the categor .....

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ed revised notice under section 84 of Finance Act, 1994 on the ground that adjudicating authority has made an error by allowing 67% abatement to the appellant as appellant is engaged in the activity of repair and maintenance service. The said show cause notice was adjudicated and demand of service tax under the category of repair and maintenance service has been confirmed against the appellant. Aggrieved from the said order appellant is before us. 3. Learned Advocate appearing on behalf of the a .....

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ed order is in violation of law. Therefore, same is to be set aside. To support this contention, he relied on the decision of Brij Mohan Surinder Kumar vs. CCE, Ludhiana [ 2012 (25) STR 58 (Tri-Del)]; and CC Mumbai vs. Toyo Engineering India Ltd.[2006 (201 ELT 513 (SC)] to say that department cannot travel beyond the issue involved in the show cause notice. 4. On the other hand, learned AR submits that there was an error in the adjudication order wherein the adjudicating authority allowed 67% ab .....

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e records. 6. We find that the initially the show cause notice was issued to the appellant to demand service tax under the category of construction services which was demanded and demand of service tax was confirmed under the said category against the appellant which appellant has not disputed. Under section 84 of the Act, learned Commissioner revised the show cause notice to change the category of the service provided by the appellant which is not permissible at this stage. Same view has been h .....

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ure appearing at page 29 of appeal folder. That page only indicates about only one service provided and most specifically at great length explains to have been carried out for repair and maintenance service, that too of immovable property. 8. The Revisionary authority proceeded on a different premises for issuing show cause notice asking the appellant to show the reason why its services should not fall under the category of commercial or industrial construction service. This is clear from para 9 .....

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