2008 (11) TMI 102 - AT - Service Tax

Excludability of value of material consumed in the process of developing and printing of photographs from the gross amount charged for the service of photography - Tribunal s decision in the case of M/s. Delux Colour Lab. Pvt. Ltd., applicable - deemed sale of the materials takes place in the rendering of photography service - Sale and Service cannot stand in the same box. Sale cannot be treated as service & vice versa - value of the materials not includible in computing value of services

Summary

Issues:
Whether the value of material consumed in the process of developing and printing of photographs is excludable from the gross amount charged for the service of photography for the purpose of calculating service tax.

The Appellate Tribunal CESTAT, New Delhi, in the case at hand, addressed the issue of whether the value of materials used in the process of developing and printing photographs should be excluded from the gross amount charged for photography services for service tax calculation. The Tribunal referred to a previous case involving M/s. Delux Colour Lab. Pvt. Ltd. & Another v. CCE, Jaipur, where it was held that the value of materials cannot be included in computing the value of services. The Tribunal emphasized that if photography service is considered a 'works contract,' involving elements of both sale and service, the sale portion cannot be part of the taxable value of service. The Tribunal concluded that the non-inclusion of material value in photography services aligns with the law, as established in the aforementioned case. Consequently, the demand for duty and penalties was deemed unsustainable, leading to the setting aside of the impugned order and allowing the appeal with consequential relief. The decision was pronounced on 20-11-2008.

In summary, the judgment by the Appellate Tribunal CESTAT, New Delhi, clarified the treatment of material value in photography services for service tax calculation. Citing a previous case, the Tribunal held that the value of materials consumed in the process should not be included when computing the value of services. This decision was based on the understanding that photography services, considered as a 'works contract,' involve elements of both sale and service, necessitating the exclusion of material value from the taxable amount. Consequently, the Tribunal set aside the demand for duty and penalties, allowing the appeal with consequential relief.