2007 (7) TMI 99 - AT - Service Tax

Department contended that appellant have to includible the cost of material to the value of service i.e photography services provided by them for paying service tax Applicants directed to pre-deposit entire tax demand

Summary

Issues:
1. Inclusion of cost of material in the value of service for paying Service tax.
2. Exclusion of cost of unexposed photographic films from taxable value.
3. Applicability of clarificatory instructions on excluding certain costs from taxable value.
4. Requirement for the appellant to pre-deposit the entire tax demanded under the impugned order.

Issue 1: Inclusion of cost of material in the value of service for paying Service tax
The Commissioner concluded that the appellants must include the cost of material in the value of the service provided to pay Service tax. The show cause notice highlighted that the appellants had paid Service tax after deducting the cost of paper and materials used in providing the service to clients. The appellants, through credit memos, had excluded the cost of material provided along with photographic services, which was confirmed by their counsel. The Revenue relied on clarificatory instructions stating that only the cost of unexposed photographic films sold to customers could be excluded, emphasizing that other costs like photographic paper and chemicals were not excludable from the taxable value.

Issue 2: Exclusion of cost of unexposed photographic films from taxable value
The Revenue's clarificatory instructions from 2001 and 2006 emphasized that the cost of unexposed photographic films sold to customers could be excluded from the taxable value. However, it was clarified that goods consumed during providing photographic services and not available for sale were not entitled to benefit under Notification No. 12/2003-S.T. The instructions reiterated the specific requirement for the service provider to clearly show the details of such films on the invoices.

Issue 3: Applicability of clarificatory instructions on excluding certain costs from taxable value
The Tribunal noted that the Revenue's instructions from 2001 and 2006 reiterated the exclusion of the cost of unexposed photographic films from the taxable value. The instructions specified that only the cost of such films could be excluded, while other costs like photographic paper and chemicals were not eligible for exclusion. The Tribunal did not find any judgments presented by the appellant covering the facts of the case.

Issue 4: Requirement for the appellant to pre-deposit the entire tax demanded under the impugned order
The Tribunal directed the appellants to pre-deposit the entire tax demanded under the impugned order within six weeks, failing which the appeal would stand dismissed. Upon depositing the required amount, the remaining penalty demanded under the order would be waived during the appeal's pendency, with a compliance reporting scheduled for a specific date.

This judgment from the Appellate Tribunal CESTAT, New Delhi, analyzed various aspects related to the inclusion of the cost of material in the value of service for paying Service tax, the exclusion of specific costs like unexposed photographic films from the taxable value, and the requirement for the appellant to pre-deposit the tax demanded under the order. The decision was based on a thorough examination of relevant circulars, instructions, and legal precedents, ultimately providing specific directives for the appellant's compliance and further proceedings.