SURABHI COLOUR LAB. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) WE take up this matter in pursuance of the following order of the Hon'ble Supreme Court:

(2.) THE matter was posted for hearing on 30 -12 -2009. On the date of hearing M/s. Surabhi Colour Lab were not represented. However, they had filed written submission dated 24 -9 -2009 for consideration of the Bench.

(3.) ADJUDICATING allegations of the appellants wrongly availing exemption benefit of Notification No. 12/2003 -ST, dated 26 -2 -2003 and not paying the full duty due on the photography service rendered by it during the material period, the Assistant Commissioner of Central Excise & Customs, Trichur had confirmed demand of service tax of Rs. 71,958 along with applicable interest and had imposed equal amount of penalty under Section 78 of the Finance Act, 1994 (the Act). In addition, he also imposed penalty of Rs. 1,000 on the appellants under Section 76 of the Act. He had denied the exemption extended under the Notification No. 12/2003 -ST, dated 26 -2 -2003 on the ground that the said exemption was available only in cases where sale of such goods was evidenced and sale value was quantified and shown separately in the invoice. Dismissing the appeal filed against the order of the Assistant Commissioner, the Commissioner (Appeals), Cochin sustained the order of the Assistant Commissioner on the reasoning that the exemption was available only on condition that the assessee had shown the cost of material in each and every invoice raised on their clients. Disposing the appeal No. ST/140/2006 filed by the assessee before this Tribunal, it was held that the appellants had actually been engaged in rendering the taxable photography service rejecting the assessee's contention that in processing and printing of photos, no element of service was involved. The Tribunal further held that if certain goods and materials were consumed in rendering the photography service then value of those goods and materials could not be included in the value of services for levy of service tax. This Bench thus allowed the appeal filed by the assessee with consequential relief.