9911796707
TMI Blog2018 (11) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... activity of printing from payment of service tax - further, the service exempted in terms of Notification No.25/2012-ST dt.20.6.2012 amended by Notification No.44/2012-ST dt.7.8.2012, 49/2012-ST dt.24.12.2012 and Notification No.3/2013 dt.1.3.2013 with effect from 1.4.2013, S.No.30, the activity of printing as job worker is exempted from payment of service. As the activity of printing has also been exempted from payment of service tax, if we take note of the fact that the activity undertaken by the appellant in relation to photography service then also the activity undertaken by the appellant is not taxable service - appeal allowed - decided in favor of appellant. - ST/60881-60883/2017-EX (DB) - FINAL ORDER NO.63360-63362/2018 - Dated:- 24-10-2018 - Mr. Ashok Jindal, Member (Judicial) and Mr.Anil G.Shakkarwar, Member (Technical) Present for the Appellant: Shri B.L.Narasimhan, Advocate Shri Gautam Chug, Advocate Present for the Respondent: Shri G.M.Sharma, AR ORDER As the issue in all these appeals are common, therefore all the appeals are disposed of by a common order. 2. The brief facts of the case are that the appellant is having units at Chandigarh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CETA. It was also held that the impugned service do not fall under the scope of works contract service, therefore, no exemption available to intermediate printing process. It was also held that the benefit of Notification No. 12/2003-ST dt. 20.6.2003 is not available. Against the said orders, the appellant is before us. 3. Ld. Counsel for the appellant submitted that the activity of printing of photo books is not taxable under Photography Service . It is his submission that photography service means any service provided by a photography studio or agency in relation to photography, in any manner. In terms of Section 65 (78) of the Act, photography may be still photography which refers to photographing persons or other subjects in studios or other locations, motion picture photography which refers to cinematography to make films, laser photography which refers to create holograms, aerial photography which refers to photographs of landscapes, structures or other surfaces from aircrafts or helicopters with the help of cameras mounted on such aircraft or helicopter or fluorescent photography which refers to using ultraviolet rays to irradiate a surface or substance to iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much as the process of printing results into a product with distinct character and use of its own which it did not bear earlier. He has also relied upon the decision of Hon ble Delhi High Court in the case of CIT vs. M/s. Delhi Press Patra Prakashan-2013-TIOL-463-HC-Del-IT. He submits that similar view has been taken by the Hon ble High Courts in the following cases:- 1. ACIT vs. Soni Photo Films (P) Ltd.-[1998] 67 ITD 81 (Del.) (SB) 2. CIT vs. Jamal Photo Industries (P) Ltd.- [2006] 285 ITR 209 (Mad.) 3. CIT vs. Balaji Hotels Enterprises Ltd.- [2009] 311 ITR 389 (Mad.) 4. CIT vs. Ajay PrinteryPvt.Ltd.-[1965 58 ITR 389 (Guj.) 6. He further submits that manufacture and marketability are twin test for attracting excise duty. Even if the goods are manufactured specifically as per the requirement to one person and are sold only to such person, the test of marketability is satisfied. Top support his contention, he has relied upon the decision of the Hon ble Supreme Court in the case of AP State Electricity Board vs. Commissioner -1994 (70) ELT 3 (SC). He further submits that the printing photo book merit classification under tariff item 49119100 of Central Excise Tarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act services. Admittedly, in this case, if service along with material is provided, in that circumstance, the service tax cannot be demanded under the category of photography services . 10. He submits that no service tax on mere binding of books, etc. under photography service. He submits as the extended period of limitation is not invokable, therefore, the interest and penalty is not imposable on the appellant. 11. Ld. AR supported the impugned order and submits that the activity is provided by the appellant relating to photography service, therefore they liable to pay service tax. 12. Heard the parties and considered the submissions. 13. On careful consideration of the submissions made by both sides, we find that service tax has been demanded from the appellant in terms of Section 65 (78) of the Finance Act, 1994 for the period till 30.6.2012 and thereafter under Section 65B (44) of the Finance Act, 1994. For better appreciation the relevant sections of Finance Act, 1994 are reproduced as under:- Section 65 (105) : taxable service means any service provided or to be provided, - (zb) to any person, by a photography studio or agency in relation to photogra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under category (2) or category (4). We have already taken note of printing process. A cursory look into the same may suggest, as held by the Tribunal, that GI paper is meant for wrapping and the use thereof did not undergo any change even after printing as the end use was still the same, namely, wrapping/packaging. However, a little deeper scrutiny into the facts would bring out a significant distinguishing feature; a slender one but which makes all the difference to the outcome of the present case. No doubt, the paper inquestion was meant for wrapping and this end use remained the same even after printing. However, whereas blank paper could be used as wrapper for any kind of product, after the printing of logo and name of the specific product of Parle thereupon, the end use was now confined to only that particular and specific product of the said particular company/customer. The printing, therefore, is not merely a value addition but has now been transformed from general wrapping paper to special wrapping paper. In that sense, end use has positively been changed as a result of printing process undertaken by the assessee. We are, therefore, of the opinion that the process of afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on into, a new commercial commodity. But it is not necessary that the original article or material should have lost its identity completely. All that is required is to find out whether as a result of the operation in question, a totally different commodity had been produced having its own name, identity, character or end use. In the instant case, a negative film roll fitted had been exposed and produced as a distinct article, viz. Photograph and such photograph cannot be called a negative film and thus the negative film losses its identity completely, after the same had been developed and had also become a totally different commercial commodity having its own identity/character and a product of end us. Therefore, what is involved while taking a photograph by a photographer is a manufacture. Hence, the assesse having engaged themselves in manufacturing process is entitled to claim investment allowance. 19. In view of the above judicial pronouncements and the activity undertaken by the appelant chapter heading 4911, is very much clear that the appellant has undertaken the activity of printing photograph on plain printing paper and thereafter bind them and selling them as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
