TMI Blog2010 (7) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... CORAM: SHRI ASHOK JINDAL, MEMBER (JUDICIAL) Per: Shri Ashok Jindal, Member (Judicial) In this appeal, the appellants are seeking setting aside of the impugned order, wherein the penalties under Sections 76, 77 78 of the Finance Act, 1994 have been confirmed against the appellants. 2. The brief facts of the case are that a show-cause notice was issued to the appellants alleging that the appellants have undervalued the taxable service and have made short payment of Service Tax amounting to Rs.3,70,492/- for the period 16.06.2005 to 31.03.2007. It was alleged that the appellants were providing the service of 'Retreading of Tyres' covered under the category of 'Management, Maintenance or Repair Service' and paying Service Tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that retreading of old tyres is not covered under category of taxable service of 'Management, Maintenance Repair'. When they realized that this activity falls under the category of 'Management, Maintenance Repair Service' they obtained the Service Tax registration, paid the service tax on labour charges by reducing the cost of materials and filed returns to the department. The Commissioner (Appeals) has rightly held in his order that the appellants are entitled for cum duty price following the judgment of Hon'ble Supreme Court in the case of Maruti Udyog Ltd., 2002 (141) ELT 3 (SC). But, while re-quantifying the Service Tax demand, the Assistant Commissioner made an error by raising a demand of Rs.23,075/-. In fact nothing is payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner in consequence to the impugned order in the appeal but the Consultant argued the quantification. As the quantification has not been challenged, I need not to consider the claim of the appellant on that aspect. Further, the penalties confirmed against the appellants without any coercive finding against the appellants are not sustainable in this case as held by the Tribunal in the case of Rajarani Exports reported in 2010 (18) STR 77 (Chennai), wherein it was held that the burden on revenue to establish suppression on the part of assessee with intent to evade payment of Service Tax has not been discharged and no penalty is leviable under Sections 76, 77 78 of the Finance Act, 1994. Accordingly, in the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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