Page 83 - GSTL_23rd April 2020_Vol 35_Part 4

2020 ] MACKINTOSH BURN LTD. v. COMMISSIONER OF SERVICE TAX, KOLKATA 409
The principal employer is the owner or occupier of the factory. Thus the princi-
pal - CPP has discharged their obligation under the provisions of ESI Act and
EPF Act. The same does not lead to the inevitable conclusion that the appellant
has supplied labourers but has entered into colourable contracts to avoid the lia-
bility of service tax. Accordingly, we hold that show cause notice is not main-
tainable as the same is based on the presumption, having no sanctity of law.
9. Further, no liability can be fastened on an assessee for the same
work, done in the past only for the reason that in the present or future point of
time, the assessee under compulsion by the principal, started paying service tax.
Under the facts and circumstances, we find that there is no case of any contuma-
cious conduct, suppression or falsification of records on the part of the appellant.
Further, whatever service tax the appellant would have paid was available to the
principal - CPP as the Cenvat credit, as they have discharged central excise liabil-
ity for their manufactured goods - paper/paper pulp. Thus, we hold that extend-
ed period is not invocable.
10. Accordingly, the appeal is allowed and the impugned order is set
aside. The appellant is entitled to consequential benefit in accordance with law.
(Order pronounced on 24-7-2019)
_______
2020 (35) G.S.T.L. 409 (Tri. - Kolkata)

IN THE CESTAT, EASTERN BENCH, KOLKATA
[COURT NO. I]
S/Shri P. Anjani Kumar, Member (T) and P. Dinesha, Member (J)
MACKINTOSH BURN LTD.
Versus
COMMISSIONER OF SERVICE TAX, KOLKATA
Final Order No. 76184/KOL/2019, dated 30-8-2019 in Appeal
No. ST/71151/2013-DB
Demand - Adjudication beyond show cause notice - Sustainability -
Well settled in catena of judgments that adjudication order cannot traverse
beyond allegations in show cause notice - Instant case, show cause notice was
for demand of Service Tax - Adjudication on violation of Rule 4(7) of Cenvat
Credit Rules, 2004 simply because appellant had submitted in their reply to
SCN that part of demand was already paid through Cenvat account, not proper
without verifying correctness of appellant’s claim - Impugned order set aside
and matter remitted to adjudicating authority to verify arithmetical correctness
of duty paid by appellant from Cenvat account - Section 73 of Finance Act,
1994. [para 7]
Demand - Computation thereof - Cum-tax benefit - Admissibility -
Appellant being a PSU, mens rea cannot be assumed for suppression/mis-
declaration by them - Accordingly denial of cum-tax benefit on ground of sup-
pression cannot sustain - Appellant entitled for aforesaid benefit in computa-
tion of demand - Matter remanded to adjudicating authority for this purpose
also - Section 73 of Finance Act, 1994. [para 8]
Matter remanded

GST LAW TIMES  23rd April 2020  203