TMI Blog2019 (1) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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 allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und non-payment of service tax collected to the tune of ₹ 47,65,673/- during the period 2010 to 2011 and sort payment of ₹ 71,476/- in the financial year 2010-11, 2011-12, 2012-13 and non-filing of ST-3 returns after March 2009. Statement of partner Shakeel Ahmed was recorded, who admitted service tax liability and attributed the reason of non-payment to delayed clearance of its bill by Tata Telecommunications and shortage of cash flow. Such raid was conducted on 16.08.2011 and immediately thereafter by 19.08.2011 the outstanding amount was paid by the appellant but vide show-cause notice dated 24.06.2014, it was asked to discharge the duty liability, interest and penalty by invoking the extended period on the ground that appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res Ltd. 2016 (42) STR 634 (Cal.), MP Laghu Udhyog Nigam Ltd. 2015 (37) STR 308 (Tri-Del), Uniworth Textiles Ltd. 2013 (SC2)-GJX-0032-SC, the ld. Counsel for the appellant prays for waiving of penalty on the ground that appellant was maintaining records and books of accounts for which those transactions were reflected and there was no intention to suppress the fact so as to evade tax. 4. In response to such submissions of the appellant, ld. AR for the respondent department supported the reasoning and rationality of the order passed by the Commissioner (Appeals) and argued with reference to case laws reported in CCE vs. Neminath Fabrics Pvt. Ltd. 2010 (256) ELT 369 (Guj) that as department acquired knowledge of irregularity, fact of suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Further, order-in-original at para 5.9 reveals 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. The other ground cited by the appellant in placing reliance to the statement of the partner is that they did not get payment against work done for Tata Telecommunications but nowh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt namely Tata Telecommunications. The case laws cited by the appellant are factually unrelated to the facts of the appellant s case as in Ford India Pvt. Ltd. case, the issue was in respect of interpretation concerning business auxiliary services and in CCE vs. Mahindra Mahindra, such irregularity were indicated through revenue audit conducted in routine manner and the like. On the other hand, the case law cited by the ld. AR i.e. CCE vs. Neminath Fabrics Pvt. Ltd. though was decided in respect of shortage of stock that was allegedly cleared without payment of tax, is squarely applicable to the case of the appellant. Hence the order 7. The appeal is dismissed and the order passed by the Commissioner (Appeals) vide Order-in- Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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