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2019 (2) TMI 587 - CESTAT NEW DELHIPenalty u/s 76 and 78 of FA - Non-payment of service tax - expenses incurred against outward transportation of cement dispatched - Held that:- The audit in this case was done in the year 2009 vide a letter dated 15.04.2009. The appellant himself had given an undertaking to produce all the relevant documents as far as the receipt of payments towards freight by the appellant is concerned but the appellant had miserably failed to stand upon the said undertaking. It is appellant’s own case that the tax proposed vide SCN dated 08.01.2010 was deposited by him in October 2010. There is no apparent document on record reflecting the said intimation to the Department. Since the audit till the date of said payment, there was more than one year of period available with the appellant to cooperate the Department and to submit the documents but there was no compliance/ intimation on part of appellant. The option of the appellant to remain silent, to my opinion, is sufficient to reflect that non payment of tax was not mere unawareness of the impugned liability on the part of the appellant but the appellant under the garb of said unawareness was not inclined to discharge his liability. No doubt mere non payment of tax liability cannot amount to suppression of fact but as discussed above the act of appellant of concealing relevant documents despite being afforded with the opportunity is definitely a positive act on his part to prove the alleged suppression of facts. Admittedly, ST-3 returns were also silent about the receipt of impugned income - penalty upheld - appeal dismissed - decided against appellant.
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