2015 (11) TMI 477

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..... -compute the demand after considering the threshold exemption limit etc. The primary adjudicating authority had confirmed the demand of Rs. 30,416/- for the period May, 2003 to January, 2006 under photography service on the ground that the appellant did not pay service tax on the gross amount received for rendering service. 2. Revenue has contended that the Commissioner (Appeals) has not given any basis to give finding that there was no malafide on the part of the respondent and therefore section 80 is not invokable. 3. Shri Khemchand Gupta (the respondent) who came for hearing from Sonebhadra (U.P.) stated that he did not have any facility of photo developing and printing and did not have any employee. He got the photographs developed a .....

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..... dingly, service providers who are registered under various State/Municipal laws relating to shop and establishments or any other laws of State which is in force for the time being for carrying out commercial activity only are liable to service tax. Individual professional photographers and other providing still photography service, but who do not have fixed place of business as a shop or office and who are not registered under these enactments will not be liable to pay service tax. In essence, service tax is payable by shops and studios, processing and developing labs, etc. and not by the individual photographers. 5. It is not in dispute that the respondent was an individual photographer who was providing photography service by clicking ph .....

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..... nintended, putting the system (to which we too belong) to shame (for want of a better world) that an appeal should come from Revenue before CESTAT against Commissioner (Appeals) order merely because the Commissioner (Appeals) granted benefit of section 80 of the Finance Act, 1944 for waiving penalty in a case where the impugned demand was a paltry Rs. 30,416/-. [In our view Commissioner (Appeals) failed to do full justice when he only allowed the benefit of section 80 of Finance Act, 1994.] In the show cause notice only the following three lines are written to invoke suppression/ extended period- "Whereas the party have suppressed the material fact from the department by not getting themselves registered in due time under the Service Tax .....

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