9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (4) TMI 1419 - AT - Service TaxValuation of photography services - exemption Notification No. 12/2003 - inclusion of cost of material, goods used/consumed in assessable value - period of dispute in the present case is from April, 2003 to September, 2003 - HELD THAT -The issue is no more res-integra in view of the decision of the Larger Bench of the Tribunal in the case of AGGARWAL COLOUR ADVANCE PHOTO SYSTEM VERSUS COMMISSIONER OF CENTRAL EXCISE, BHOPAL 2011 (8) TMI 291 - CESTAT, NEW DELHI (LB) where it was held that For the purpose of Section 67 of the Finance Act, 1994, the value of service in relation to photography would be the gross amount charged including cost of goods and material used and consumed in the course of rendering such service. The cost of unexposed film etc. would stand excluded in terms of Explanation to Section 67 if sold to the client. It was also held in the case that the value of other goods and material, it sold separately would be excluded under exemption Notification No. 12/2003 and the term sold appearing thereunder has to be interpreted using the definition of sale in the Central Excise Act, 1944 and not as per the meaning of deemed sale under Article 366(29A)(b) of the Constitution. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Whether the value of service in relation to photography should include the cost of materials used/consumed. 2. Interpretation of the term 'sale' under exemption Notification No. 12/03-S.T., dated 20-6-03. 3. Applicability of the definition of 'sale' under Section 2(h) of the Central Excise Act, 1944 or Article 366 (29A)(b) of the Constitution. 4. Determination of the gross amount charged for the purpose of Section 67 of the Finance Act, 1994. 5. Relevance of previous judgments and decisions by higher courts on similar issues. Detailed Analysis: 1. Inclusion of Cost of Materials in Photography Services: The Tribunal examined whether the value of service in relation to photography should include the cost of materials used or consumed. Referring to the decision in Aggarwal Colour Advance Photo System Vs. Commr. of Central Excise, Bhopal, the Tribunal concluded that for the purpose of Section 67 of the Finance Act, 1994, the value of service in relation to photography includes the gross amount charged by the service provider, incorporating the cost of materials or goods used/consumed, except for the cost of unexposed film sold to the client. 2. Interpretation of 'Sale' Under Exemption Notification No. 12/03-S.T.: The Tribunal addressed whether the term 'sale' in the exemption Notification No. 12/03-S.T., dated 20-6-03, should be interpreted as per Section 2(h) of the Central Excise Act, 1944, or include the deemed 'sale' as defined by Article 366 (29A)(b) of the Constitution. The Tribunal held that the term 'sale' in the notification should be interpreted based on its definition in Section 2(h) of the Central Excise Act, 1944, and not as a deemed sale under Article 366(29A)(b) of the Constitution. 3. Definition of 'Sale' for Exemption Purposes: The Tribunal emphasized that the word 'sale' in the exemption notification must be understood as per the Central Excise Act, 1944. The Tribunal rejected the argument that the term should include deemed sales under Article 366(29A)(b) of the Constitution, stating that the notification does not override statutory provisions. 4. Determination of Gross Amount Charged: The Tribunal reiterated that for the purpose of Section 67 of the Finance Act, 1994, the value of service in relation to photography should be the gross amount charged, including the cost of materials used/consumed in rendering the service. The only permissible deduction from the gross amount is the value of unexposed film sold to the client. 5. Relevance of Previous Judgments: The Tribunal noted that the issue had been previously resolved by higher courts, including the Supreme Court, which had dismissed the Civil Appeal filed by the Department against the Tribunal’s judgment in Shilpa Colour Lab Vs. CCEx., Calicut. The Tribunal also referred to the decision in Surabhi Colour Lab and other similar cases, affirming that the value of goods used in photography services should not be included in the assessable value for service tax purposes. Conclusion: The Tribunal set aside the impugned order and allowed the appeal filed by the appellant, granting consequential relief. The Tribunal's decision was based on the larger bench's interpretation that the value of service in relation to photography includes the gross amount charged, incorporating the cost of materials used, except for unexposed films sold to the client. The term 'sale' in the exemption notification should be interpreted as per the Central Excise Act, 1944, and not as a deemed sale under the Constitution.
|
