Custom, Excise & Service Tax Tribunal
M/S Hans Colour Lab & Studio vs Cce, Jaipur on 28 March, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING/DECISION : 28/03/2014. Service Tax Appeal No. 274 of 2009 [Arising out of the Order-in-Appeal No. 103 (DK) ST/JPR-I/2008 dated 12/09/2008 passed by The Commissioner (Appeals), Central Excise, Jaipur.] For Approval and signature : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, Member (Technical) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? M/s Hans Colour Lab & Studio Appellant Versus CCE, Jaipur Respondent
Appearance Ms. Rinky Arora, Advocate for the appellant.
Shri Govind Dixit, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 51648/2014 Dated : 28/03/2014 Per. Rakesh Kumar :-
The appellant provide the taxable service of photography. The period of dispute in this case is from April 2007 to November 2007. During this period, the appellant instead of paying service tax in respect of photography service provided by them on the gross amount charged, were paying service tax only on the net amount after deducting the cost of photography paper, chemicals and consumables. The department being of the view the service tax was payable on the gross amount charged, initiated proceedings for recovery of the differential amount of service tax alongwith interest and also for imposition of penalty which resulted in order-in-original dated 29/04/08 being passed by the Assistant Commissioner by which the service tax demand of Rs. 56,514/- was confirmed against the appellant alongwith interest and beside this, penalty was imposed under Section 76 as well as 77. On appeal being filed to Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 10/09/08 upheld the Assistant Commissioners order. Against this order of the Commissioner (Appeals), this appeal has been filed. However, the disputed amount of service tax has been paid.
2. Heard both the sides.
3. Both the sides agree that the issue involved in this case whether the service tax is chargeable on the gross amount charged or the net amount after excluding the value of paper, chemicals and other consumables, the same stands decided in favour of the department by Larger Bench judgment of the Tribunal in the case of Agrawal Colour Advance Photo System vs. CCE, Bhopal reported in 2010 (19) S.T.R. 181 (Tri. Del.). The appellant, however, plead that since during the period of dispute, there were conflicting judgments of the Tribunal on this issue penalty under Section 76 and 77 is not warranted. We are inclined to accept this plea of the appellant as only because of divergent views expressed in various judgments of the Tribunal on this issue, this matter had been referred to Larger Bench in the case of Agrawal Colour Advance Photo System vs. CCE, Bhopal (supra), which finally decided this issue in favour of the department. In view of this, we are of the view that Section 80 of the Finance Act, 1994 is invokable and accordingly the penalty imposed on the appellant under Section 76 and 77 is waived. The appeal stands disposed of, as above.
(Operative part of the order pronounced in the open court.) (Justice G. Raghuram) President (Rakesh Kumar) Member (Technical) PK ??
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