2015 (12) TMI 1567 - AT - Service Tax

Appellate Tribunal rules on service tax liability for photography services, clarifies penalties under Sections 76, 77, and 78.

The Appellate Tribunal found the appellant liable for service tax on photography services during 2004-05, excluding the sale of non-taxable items. ... Demand - non-payment of service tax under photography services during the period 2004-05 - appellant contended that they have started business in the year, 2004 and they are not conversant with the legal provisions. However, they got themselves registered with the Service Tax Department in April, 2005 - substantial income on simple sale of items, like, cameras, camera covers, film rolls etc. - Held that:- it is found that the pure sales of materials has no bearing to the service tax liability and cannot be added to the taxable value. This aspect was not examined by the lower authorities. We find that the appellants are liable to service tax during the impugned period on the value of services provided, but not on simple sale of various items, which are not part of taxable service provided to any person. With these facts in position, the demand requires re-working deducting the simple sale of items, which are not connected to any service rendered by the appellant. The service tax liability will stand reduced to that extent. Imposition of penalty - Sections 76, 77 and 78 of the Finance Act, 1994 - appellant submitted that the penalties under Sections 76 and 78, cannot be imposed for the same offence - Held that:- it is found that various judicial pronouncements have clarified that imposition of both the penalties on the same issue, is not legally tenable. Accordingly, penalty under Section 76 is set aside. Penalty under Section 78, will stand to the extent of service tax liability re-worked as above. Penalty under Section 77 is also upheld. - Decided partly in favour of appellant Issues:- Liability of service tax on photography services during 2004-05- Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994- Applicability of penalties under Sections 76 and 78 for the same offenceAnalysis:1. Liability of service tax on photography services during 2004-05:The case involved the appellant, engaged in a photography business, against whom proceedings were initiated for non-payment of service tax under photography services during the period 2004-05. The original authority confirmed a demand of &8377; 43,000 and imposed penalties under Sections 76, 77, and 78 of the Finance Act, 1994. On appeal, the Commissioner (Appeals) upheld the order, leading the appellant to approach the Appellate Tribunal. The appellant admitted the liability of service tax for the impugned period but argued that the levy of service tax on photography services was introduced in 2001, and they started their business in 2004, being unaware of the legal provisions initially. However, they got registered with the Service Tax Department in April 2005. The Tribunal found that the appellants were liable to service tax during the impugned period on the value of services provided, excluding the simple sale of items like cameras, camera covers, and film rolls, which do not contribute to the taxable service provided.2. Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994:The lower authorities had imposed penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The appellant's counsel argued that penalties under Sections 76 and 78 should not be imposed for the same offence. The Tribunal referred to judicial pronouncements clarifying that imposition of both penalties on the same issue is not legally tenable. As a result, the penalty under Section 76 was set aside, while the penalty under Section 78 was upheld to the extent of the re-worked service tax liability. The penalty under Section 77 was also upheld by the Tribunal.3. Applicability of penalties under Sections 76 and 78 for the same offence:The Tribunal concluded that penalties under Sections 76 and 78 cannot be imposed for the same offence, aligning with established legal principles. While the penalty under Section 76 was deemed not applicable, the penalty under Section 78 was maintained in accordance with the re-worked service tax liability. Additionally, the penalty under Section 77 was upheld by the Tribunal. Consequently, the appeal was partly allowed, with adjustments made to the service tax liability and penalties imposed on the appellant.