TaxTMI 
TaxTMI 
2023 (10) TMI 995
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....ntral Tax, Central Excise & Customs, Raipur. 2. The appellant is registered with the Central Excise, Raipur and holds the service tax registration for providing services of consulting engineers, business auxiliary, manpower recruitment or supply, goods transport agency, etc. Its records were audited by the Accountant General of Chhattisgarh, Raipur and it was felt that the appellant had short paid service tax to the extent of Rs. 72,33,994/- during the year 2008-2009 in respect of services received by it from foreign companies in the capacity of recipient of services. Similar short payments were noticed during the subsequent three financial years also. 3. Accordingly, a show cause notice dated 16.04.2014 was issued to the appellant de....
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....by the appellant : (a) payments made to Pual Cerullo - Service Tax of Rs. 9,45,494/- ; (b) Other payments - Service Tax of Rs. 6,24,074/- 7. Learned counsel for the appellant submits that it is not contesting the demand of service tax of Rs. 6,24,074/- on other payments which it made to overseas service providers on reverse charge basis. It is only contesting the demand of Rs. 9,45,494/- as service tax on the payments made to Pual Cerullo. It is the contention of the appellant that Pual Cerullo was an employee of the appellant and any payments made by an employer to an employee for the services of the employee do not form a taxable service as per the Finance Act. 8. Learned authorized representative also does not dis....
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....d Service tax of Rs. 9,45,495/-, including ed. Cess and she cess (@10.30%) is payable on the said amount, along with interest. Held accordingly". 10. Thereafter, in terms of employment contract, the appellant decided to terminate the services of Pual prematurely and issued a letter dated 10.03.2011 which is reproduced below :- "No. Balco/Korba/HR/2011/PC/14340/01 Dated : 10th March 2011 To Mr. Pual M. Cerullo San Digo CA 91942 USA Sub. : Short closure of Assignment Contract. Ref. : Your Assignment Contract did 6th Aug 2009 and our letter No. Balco/Korba/HR/2011/PC/14340 dated 28th Feb 2011 and your reply dated 01st March 2011. Dear....
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....tive for the Revenue submits that the necessary evidence was not produced before the Principal Commissioner and since the documents have now been produced, the matter may be remanded to the Principal Commissioner for adjudication. 12. We are not inclined to remand the matter as it is evident from the impugned order that the only reason the Principal Commissioner confirmed the demand on the payment made to Pual is that the employment contract and other evidence were not produced before him. The letters of appointment and the termination letter produced before us make it amply clear that Pual was appointed as the Chief Operating Officer. Therefore, the relationship between the appellant and Pual was that of an employer and employee. It is ....
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.... malafide intent and there is no evidence in the impugned order to establish it. 17. Learned authorized representative for the Revenue supports the impugned order on the question of penalty under section 78. 18. Having considered the rival submissions on this issue, we find that to impose penalty under section 78 of the Finance Act elements of fraud or collusion or willful mis-statement or suppression of facts or violation of Act or Rules made thereunder with an intent to evade payment of tax must be established. In the absence of evidence of such an intent, no penalty under section 78 can be imposed. In this case, not only is there "no evidence" of such an intent but the entire payment is revenue neutral at the hands of the appellant....