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2019 (1) TMI 509 - AT - Service TaxPenalty u/s 78 - non-payment of service tax collected for providing telecom services and work contract services - short payment for other period - cash crisis/ fund shortage was cited as the ground for such non-discharge of duty liability but on 18.08.2011 and 19.08.2011, the appellant was able to discharge the entire amount, which is just within two days from the date of raid conducted by the respondent department - intent to evade or not - Held that:- Appellant was not fling ST-3 returns and would have continued to evade service tax by suppressing material facts, had there been no intervention by the department. This being the factual aspect, it cannot be said that appellant had a bonafide intention to discharge duty liability and it could not do so due to incapacity - also, no material is forthcoming that appellant was ignorant of its duty liability and had in fact furnished its statement by way of ST3 returns to the department indicating its duty liability. Section 78 requires that such fact of wilful suppression, misstatement etc. had to be established by the department on whom the burden of proof lies and department has successfully discharged the same by getting the same admitted by the partner of appellant firm which remained unchallenged by the appellant all throughout the proceedings - Therefore the onus has shifted to the appellant which is supposed to disprove the allegation of the department but both stand taken by the appellant regarding delayed payment and cash crunch could not be substantiated by it as it could generate cash of huge amount for payment within two days of visit by the departmental officials to is premises and in not producing any documentary proof regarding non-payment or delayed payment by the service recipient namely Tata Telecommunications. Appeal dismissed - decided against appellant.
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