2010 (4) TMI 568 - AT - Service Tax

Photography Service - The Service Tax demand has been confirmed and penalties have been imposed on the ground that the appellants undertake the activity of manufacture and supply of hologram labels. The manufacturing process of hologram label involves laser photography and therefore the activity undertaken by the appellants would be covered under photography service. Commissioner in his order had not considered (i) whether activities undertaken by assessee in absence of use of laser device could be said to have been covered under photographic service and (ii) whether said activity or a portion of activity could be made liable to both excise duty and service tax. Held that - in such circumstances the matter was remanded to Commissioner.

Summary

Issues:
Service Tax demand on manufacture and supply of hologram labels, classification under 'photography service,' consideration of laser device usage, excise duty implications, liability for service tax.

Analysis:
The Appellate Tribunal considered a case involving a Service Tax demand of Rs. 1,90,05,533 on the manufacture and supply of hologram labels, with penalties imposed under sections 76, 77, and 78 for the period from 1-12-2002 to 31-12-2007. The Tribunal noted that the manufacturing process of hologram labels involves laser photography, leading to the classification of the activity under 'photography service.' However, after hearing both sides, the Tribunal found that crucial aspects had not been considered and decided to remand the matter for further examination. The Tribunal waived the pre-deposit requirement, allowed the stay application, and proceeded to review the appeal for a final decision.

The Appellants argued that the Commissioner failed to acknowledge that only one step out of the five in the hologram label manufacturing process involved the use of a laser device. They contended that the department's assertion of laser device usage equating to laser photography was incorrect. The Appellants highlighted that the department's proposal to levy both Central excise duty and service tax on the same activity was impermissible. Additionally, the Appellants raised concerns about the limitation and excise duty implications based on a letter from the Superintendent of Central Excise.

On the other hand, the Department argued that the activities undertaken by the Appellants, such as electroforming and supplying shims, were akin to photographic activities. They compared the process to digital imaging and traditional photography, emphasizing the use of electroforming to produce shim holograms for security hologram production. The Department contended that the Appellants were engaged in rendering services related to photography, justifying the Service Tax demand.

The Tribunal observed discrepancies in the Commissioner's order, noting that the Appellants did not manufacture the moulds and primarily engaged in producing shim holograms. The Tribunal highlighted the lack of examination regarding whether the absence of laser device usage in the Appellants' activities constituted photographic service. They emphasized the need to consider the implications of excise duty payment by another party involved in hologram label production. Consequently, the Tribunal set aside the impugned order and remanded the matter to the Commissioner for a fresh decision, ensuring the Appellants' opportunity to present their case and upholding principles of natural justice. The Tribunal kept all issues open for further consideration.