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TMI Blog2012 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... All the appeals, some filed by the assessee and some filed by the Revenue are being disposed of by a common order as the issue is covered by the Larger Bench of the Tribunal. 2. The appellants / respondents are engaged in providing photographic services. The disputed issue is as to whether the cost of materials used in providing such service is required to be added in assessable value or not. Learned Advocate appearing on behalf of the assessee fairly agrees that the issue stands covered against them by the Larger Bench decision of the Tribunal in the case of Aggarwal Colour Advance Photo System v. CCE [2011] 13 taxmann.com 192/33 STT 33 (New Delhi-Cestat) wherein it was held that the cost of material used for providing such servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 11.8.2011. The Hon'ble Supreme Court in the case of Jaiprakash industries Ltd. v. CCE 2002 (146) ELT 481 has observed that when there is a bona fide doubt as regards the non-excisability of the goods due to divergent views of the High Courts extended period of five years cannot be invoked. It further stands observed that mere failure or negligence in not taking licence or not paying duty is not sufficient to invoke extended period. By applying the ratio of law declared in the above decision, we find that since the earlier decisions of the Tribunal were in favour of the assessee, it has to be held that there was bona fide doubt about the inclusion of the cost of material in the cost of services. If that be so, no mala fide can be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d would be within the normal period of limitation. We, accordingly, remand all the matters to the original adjudicating authority to confirm the demands falling within the normal period of limitation. As regards penalties, by following the earlier decisions in the case of Centre Point Colour Lab Agarwal Photo Finish ( supra ) wherein it was held that there being no mens rea on the part of the service provider on account of various precedent decisions of the Tribunal in their favour during the relevant period, penalty is not required to be imposed upon the assessee. We accordingly, set aside the same wherever the appeals are filed by the assessee and wherever the appeals are filed by the Revenue and penalties are set aside by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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