TMI Blog2006 (11) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of assessee by adjudicating authority - ST/27/2006 - 1925/2006, - Dated:- 20-11-2006 - [Order per : S.L. Peeran, Member (J)]. - This appeal arises from Order-in-Original No. 1/2005 ST (Comm.) dated 19-12-2005 confirming Service Tax for the period 1-7-2003 to March 2005 in terms of show cause notice dated 28-7-2005 without invoking the proviso of amended Section 73 brought in 10-9-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 331 (T) wherein it has been clearly held that once the provisions has been changed, then the existing provisions at the time of issue of show cause notice should be applicable and not the earlier provisions. In this case, the earlier provision of Section 73 of the Finance Act provides for issue of notice for recovery of Service Tax for 5 years where there is failure on the part of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice. On these two grounds, he prays for setting aside the order. 3.The Commissioner has filed a written submission and contended that the confirmation of demand is justified. It is contended that although the proviso to Section 73 has not been invoked as the demands pertain to earlier period also, however, the show cause notice issued under the previous provisions of Section 73 is sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that once a new provisions has been brought into existence, then at the time of issue of show cause notice the new provisions as is in existence should be complied. The show cause notice has been issued in the present case on 28-7-2005, therefore, the amended provisions in terms of Section 73 of the Finance Act 2004 ought to have been invoked. The ingredients of proviso to Section 73 have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary Services' which had not been alleged in the show cause notice. The Commissioner cannot change the character of the show cause notice and confirm demands under different heading and category then the one alleged in the show cause notice. Therefore, the contention raised by the learned Counsel for non-confirmation of demands is justified. There is no basis for confirmation of demands and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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