Custom, Excise & Service Tax Tribunal
Vasanth Color Laboratories Ltd vs Bangalore Service Tax- I on 29 March, 2022
ST/2613/2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. 1
Service Tax Appeal No. 2613 of 2010
[Arising out of Order-in-Appeal No. 361/2010 dated
09/09/2010 passed by the Commissioner of Central Excise
(Appeals), Bangalore.]
M/s. VASANTH COLOR
LABORATORIES LTD Appellant(s)
NO.110, KH ROAD,
BANGALORE - 560027
VERSUS
Commissioner of Service Tax
BANGALORE SERVICE TAX- I
1ST TO 5TH FLOOR,
TTMC BUILDING, Respondent(s)
above BMTC BUS STAND, DOMLUR BANGALORE - 560 071.
KARNATAKA Appearance:
None Shri P. Rama Holla, Superintendent, Authorised Representative for the Respondent.
CORAM:
HON'BLE MR. RAMESH NAIR, JUDICIAL MEMBER HON'BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER Final Order No: 20116_ / 2022 Date of Hearing: 24/03/2022 Date of Decision: 29/03/2022 Per : RAMESH NAIR Brief facts of the case are that during AG's Audit it was noticed that appellants are providing 'Photography Service' but they have neither obtained the registration nor discharged service tax on 'Photography 1 ST/2613/2010 Service' during the period 2002-03 to 2003-04. Accordingly, a show- cause notice dated 17.7.2007 was issued proposing to demand Service Tax of Rs.38,801/- along with interest and to impose equal penalty. The show-cause notice was adjudicated vide Order-in-Original dated 9.1.2009. Being aggrieved by the said order, appellant filed an appeal before the Commissioner (A), who concurring with the original authority rejected the appeal filed by the appellant. Therefore, the present appeal.
2. When the matter was called out, none appeared on behalf of the appellant despite notice being served on them and also after allowing the early hearing application. Therefore, the matter is taken up for disposal.
3. We have heard Shri P. Rama Holla, learned Authorised Representative appearing for the Revenue.
4. We have carefully considered the submissions made by the learned Authorised Representative and perused the records. The issue to be decided in the present case is that whether the appellant's activities i.e., processing and printing photograph from the negative supplied by their client amounts to 'Photography Service' or otherwise. The appellant in their appeal have taken alternate grounds. They submit that their activity is in the nature of advertisement films and not photographs as defined under Section 65(78) of the Act and hence, they are not liable to obtain registration as a service provider as required under Section 65(79) of the said Act during the period in question. It is their submission that 'Photography Service' covers only motion picture photography also known as cinematography to make films and nowhere in the Act the processing of advertisement film is mentioned. There is difference between motion picture photography and advertisement film. Motion film means a full- length cinematograph film produced wholly or partly in India with a format and story woven around a number of characters where the plot is revealed mainly through dialogues and not wholly through narration, 2 ST/2613/2010 animation, cartoon depiction and does not include an advertisement film. They further submitted that on their activity they are discharging sales tax as evident from the assessment orders issued by the Commercial Tax Department for the Financial year 2002-03 and 2003-04. Once the activity suffered sales tax, no service tax can be demanded, for this submission, they relied upon the following judgments.
(i) Sobha Developers Ltd. vs. CCE, Bangalore : 2010 (19) STR 75 (Tri.-Bang.)
(ii) Daspalla Hotels Ltd. vs. CCE, Visakhapatnam: 2010 (18) STR 75 (Tri.-Bang.)
(iii) LSG Sky Chefs (India) Pvt. Ltd. vs. CST, Bangalore: 2009 (15) STR 545 (Tri.-Bang.)
(iv) Grand Ashok vs. CST, Bangalore: 2009 (15) STR 344 (Tri.-
Bang.)
(v) Pillai & Sons Motor Co. vs. CCE, Trichy: 2009 (14) STR 844 (Tri.-Chennai)
(vi) Imagic Creative Pvt. Ltd. vs. CCT: 2008 (9) STR 337 (SC)
(vii) ASL Motors Pvt. Ltd. vs. CCE, Patna: 2008 (9) STR 356 (Tri.-
Kolkata)
(viii) BPL Mobile Communications Ltd. vs. CCE, Mumbai: 2007 (7) STR 440 (Tri.-Mumbai)
(ix) Bharat Sanchar Nigam Ltd. vs. UOI: 2006 (2) STR 161 (SC) 4.1 Appellants have alternatively submitted that the demand is entirely time barred for the reason that they have not suppressed any fact as the case was also made out on the basis of AG audit and the data of Profit and Loss Account and Balance Sheet. Therefore, in the absence of any suppression of fact, the demand raised under longer period will not sustain. In support of this, they placed reliance on the following case laws:
3ST/2613/2010
(i) CCE, Kanpur vs. Taj Tours & Travels: 2009 (16) STR 273 (Tri.-
Del.)
(ii) CCE, Raipur vs. Vishal Agencies: 2009 (15) STR 195 (Tri.-
Del.)
(iii) Sridhar & Santhanam vs. CCE, Chennai : 2009 (14) STR 756 (Tri.-Chennai)
(iv) HML Agencies (P) Ltd. vs. CCE, Mangalore: 2009 (14) STR 626 (Tri.-Bang.)
(v) Institute of Chartered Fin. Analysts of India vs. CCE, Hyderabad-II: 2009 (14) STR 220 (Tri.-Bang.)
(vi) Rolex Logistics Pvt. Ltd. vs. CST, Bangalore: 2009 (13) STR 147 (Tri.-Bang.)
(vii) R.S. Travels vs. CCE, Meerut: 2008 (12) STR 27 (Tri.-Del.)
(viii) Nexcus Computers (P) Ltd. vs. CCE, Pondicherry: 2008 (9) STR 34 (Tri.-Chennai)
(ix) Vikram Ispat vs. CCE, Raigad: 2007 (8) STR 559 (Tri.-
Mumbai)
(x) U.T. Ltd. vs. CCE, Calcutta-I: 2001 (130) ELT 791 (Tri.-
kolkata)
(xi) Hindalco Industries Ltd. vs. CCE, Allahabad: 2003 (161) ELT 346 (Tri.-Del.)
(xii) Kirloskar Oil Engines Ltd. vs. CCE, Nasik: 2004 (178) ELT 998 (Tri.-Mumbai)
(xiii) Rolex Logistics Pvt. Ltd. vs. CST, Bangalore: 2009 (13) STR 147 (Tri.-Bang.) They also made submission for waiver of penalties.
4.2 We find that the case can be decided on the ground of time bar itself without going into the merit of the case. In this regard, we find that the demand was raised on the basis of the AG's audit on scrutiny of the appellant's records such as Profit and Loss Account and Balance Sheet, which revealed that they have received some income in respect of service 4 ST/2613/2010 in question. We also find that the issue involved is interpretation of the definition of service viz., 'Photography Service'. There are various judgments on this issue and the appellant's stand is also that their activity of processing and printing out of photographs from native supplied by their client is in the category of advertisement films, for this reason also, the issue involved is interpretation of law. In these circumstances, we find that the suppression of fact cannot be alleged against the appellant. In the present case, the demand pertains to the period 2002-03 and 2003- 04 whereas the show-cause notice was issued on 17.7.2007 which is much after the normal period. Therefore, in our considered view the entire demand is time barred. Accordingly, we set aside the demand only on the ground of time bar without going into the merits of the case. Consequently, the impugned order is set aside and appeal is allowed.
(Dictated and pronounced in open court on 29.03.2022.) (RAMESH NAIR) JUDICIAL MEMBER (P. ANJANI KUMAR) TECHNICAL MEMBER rv...
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