By TIOL News Service

MUMBAI, DEC 02, 2015: THIS is a Revenue appeal filed against an o-in-a.

The Commissioner(A), Goa set aside the order-in-original by recording the following:-

"I have examined the impugned order and submissions. When the Show Cause Notice is issued on the grounds for classification of the services under one category, it is not possible for the adjudicating authority to make a new case different from that alleged in show cause notice. Such an attempt would tantamount to going beyond the show cause notice. The same would be in gross violation of the principles of natural justice, as held in:

I. Hindustan Polymers Co. Ltd. vs. Collector of Central Excise, Guntur - 2002-TIOL-822-SC-CX

x x x"

After considering the submissions made by both sides, the CESTAT observed -

++ We do find that the show-cause notice issued to the appellant indicates that the classification of the services is to be considered under the category of ‘Commercial or Industrial Construction Services' and directed the respondent to show-cause why it should not be done so whereas the adjudicating authority has confirmed the demand of service tax on "Construction of Residential Complex" service which, the first appellate authority has correctly held that the adjudicating authority has traversed beyond the allegation of the show-cause notice. If the assessee is not put to notice under which category the service tax sought to be demanded, the conclusion reached by the first appellate authority is correct and does not suffer from any infirmity.

++ Be that as it may, we also find that the contract which has been entered by the respondent is a "works contract" and the entire contract has been executed prior to 01.06.2007. In our view the issue is no more res integra as the judgement of the Hon'ble Apex Court in the case of CCE v. Larsen and Toubro Ltd and Ors. - 2015-TIOL-187-SC-ST it has held that works contract cannot be vivisected prior to 01.06.2007 for taxing separately.

Holding that the impugned order is correct and the appeal filed by the Revenue is devoid of merits, the same was rejected.

(See 2015-TIOL-2560-CESTAT-MUM)