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TMI Blog2020 (2) TMI 1683X X X X Extracts X X X X X X X X Extracts X X X X ..... f Finance Act, 1994 and penalties imposed under Section 77 and 78 ibid to cannot be sustained and are set aside - appeal allowed. - ST/87260/2019 - FINAL ORDER NO. A/85600/2020 - Dated:- 11-2-2020 - HON BLE SHRI S K MOHANTY MEMBER (JUDICIAL) AND HON BLE SHRI SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Appearance: For the Appellant ; Shri Bharat Raichandani, Advocate For the Respondent : Shri D M Shinde, Authorized Representative Per: Sanjiv Srivastava This appeal is directed against Order-in-Original No. 69/ SKV-50/ MUMECGST/ 2018-19 dated 13.03.2019 passed by the Commissioner Central Tax and GST, Thane. By the impugned order Commissioner (Appeal) has held as follow: 6.1 In view of above findings I a. Confirm demand of Service Tax amounting to Rs 6,61,85,652/- under Section 73(2) of the Finance Act, 1994, against the noticee; b. Order levy imposition and collection of interest at appropriate rate on the above amount of service tax under Section 75 of the Finance Act, 1994 from the noticee; c. Impose a penalty of Rs 6,61,85,652/- on the noticee, under Section 78 of the Finance Act, 1994; d. Impose a penalty of Rs 10,000/- on the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before CESTAT. 3.1 We have Shri Bharat Raichandani, Advocate on the behalf of Appellants and Shri D M Shinde, Assistant Commissioner, Authorized Representative for the Revenue. 3.2 Arguing for the Appellant, learned counsel submitted that- Apart from providing the photography services, for which they are registered with the department and paying the service tax on the same they also undertake the activity of digital printing of photo-books, catalogue, wedding cards etc on the basis of the softcopy of pictures etc provided by their clients to them. The activity of digital printing of photo-books etc is not an activity of Service as defined by the Finance Act, 1994 hence should not be leviable to Service Tax. Chandigarh Bench of CESTAT has considered the same very issue in case of Venus Albums [2019 (22) GSTL 386 (T-Chandigarh)], and held that the activity undertaken in digital printing of such photo books and photo albums etc is an activity amounting to manufacture of goods classifiable under Chapter 4911 of Schedule 1 to Central Excise Tariff Act, 1994 During the entire period in dispute they had been filing their ST-3 returns and paying serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy of service tax on photography services has held as under: 3. We have considered the contentions of the appellants. Section 65(79) of Act 1994 defines a photography studio or agency to mean any professional photographer or a commercial concern engaged in the business of rendering services relating to photography . The taxable service was defined under Section 65(105)(zb) during the relevant period as to a customer by a photography studio or agency in relation to photography in any manner . According to Oxford dictionary, photography means the taking or processing of photographs . According to the same dictionary photograph means picture obtained by means of photography. It is not in dispute that the appellants are professional photographers and commercial concerns and were engaged in the business of rendering services relating to photography. Thus they are covered within the scope of photography studio or agency. It may be seen that under Section 65(105)(zb) the service is to be rendered by a photography studio or agency in relation to photography in any manner. (emphasis added). Thus, even if they had not given black and white or colour prints and only loaded the images ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ratio of same to hold against the appellant. If the Commissioner was of the view that the facts in case of Global Digital Colour Lab were not identical to the facts of the case under consideration then what is the relevance of that decision for deciding the issue in hand. The Commissioner has categorically recorded that the issue before the Tribunal in the case of Global was not in relation to digital offset printing , the bone of contention in present proceedings. 4.4 In case of Venus Albums [2019 (22) GSTL 386 (T-Chandigarh)] Chandigarh Bench has on the identical facts held as follows: 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 photography, in any manner. Section 65 (78): photograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in question 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 aforesaid particular kind of printing has resulted into a product, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 appellant 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 photo books. The said activity amount to manufacture and the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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