2018 (6) TMI 191 - AT - Service Tax

Photography Services - benefit of the reduction of cost of materials - N/N. 2/2003 as amended - Held that - The calculation as recorded by the first appellate authority and the reason as reproduced herein are as per the acceptable principles of the accountancy norms and has correctly arrived at the decision based on the materials consumed as reported in the balance sheet. CENVAT credit availed on the machinery procured by the appellant - depreciation - Held that - Revenue has not been able to bring on record that the depreciation is claimed by appellant during the period in question, was inclusive of Central Excise Duty on which CENVAT credit has been availed - In the absence of any supportive evidence for argument of revenue, the first appellate authority was correct in extending the benefit of CENVAT credit to the appellant in respect of the machinery procured by them. Benefit of N/N. 12/03 - reduction of the cost of materials for arriving at the value of such service tax liability - Held that - On perusal of amending notification No. 12/2004, it is found that the conditions for availing the benefit of N/N. 12/03 does not include non-availment of CENVAT credit on capital goods - the restriction is for non-availment of credit of duty paid on goods and materials sold and not on the capital goods - benefit allowed. Penalty u/s 78 - Held that - It can be seen from the records that the demand is confirmed for the period 2001-02 to 2006-07 by invoking the proviso of Section 73 of the Finance Act, 1994, hence, the penalty imposed by the first appeallate authority under section 78 is correct - penalty upheld. Appeal dismissed.

Summary

Issues:
Confirmation of service tax demand, Reduction of service tax liability, CENVAT credit on machinery, Imposition of penalties.

Confirmation of Service Tax Demand:
The case involved the appellant, a photography service provider, who failed to file ST-3 returns and pay service tax liabilities for the period 2002-03 to 2005-06. The show cause notice was issued invoking the extended period, demanding service tax, interest, and penalties. The first appellate authority confirmed the demand of service tax but reduced it after considering the exclusion of the value of materials consumed. The Tribunal upheld the decision, stating that the first appellate authority correctly calculated the tax liability based on the materials consumed as reported in the balance sheet.

Reduction of Service Tax Liability:
The Revenue contended that the first appellate authority incorrectly extended the benefit of reducing the cost of materials, arguing that the appellant had not maintained separate records for material consumption. However, the Tribunal found the objection to be incorrect as the authority had detailed calculations based on financial accounts certified by the auditor. The Tribunal upheld the decision, stating that the calculation was in line with acceptable accounting norms.

CENVAT Credit on Machinery:
The appellant claimed CENVAT credit on machinery procured, supported by documents issued by Kodak India Limited. The Revenue objected, alleging that the appellant did not follow the procedure for availing CENVAT credit. The Tribunal found the objection baseless, as the duty paid document supported the credit claim. The Tribunal also dismissed the Revenue's argument regarding depreciation and upheld the extension of CENVAT credit by the first appellate authority.

Imposition of Penalties:
The appellant argued against the penalties imposed by the first appellate authority, seeking leniency due to personal circumstances. The Tribunal rejected the appellant's plea, stating that the penalties were correctly imposed as per the provisions of the Finance Act. The Tribunal also upheld the penalty under section 78, finding no reason to interfere with the reasoned order passed by the first appellate authority.

In conclusion, the Tribunal rejected both the appeals filed by the Revenue and the appellant, upholding the decisions of the first appellate authority regarding service tax demand, reduction of tax liability, CENVAT credit, and imposition of penalties. The judgment provided detailed analysis and reasoning for each issue, ensuring compliance with legal provisions and accounting norms.