Page 61 - GSTL_16th July 2020_Vol. 38_Part 3

2020 ] AGRAWAL COLOUR ADVANCE PHOTO SYSTEM v. COMMISSIONER OF C. EX. 299
C.K. Jidheesh v. Union of India — 2006 (1) S.T.R. 3 (S.C.) — Referred ................................... [Paras 2, 4, 17]
Gujarat Ambuja Cements Ltd. v. Union of India — 2005 (182) E.L.T. 33 (S.C.) — Referred ........... [Para 5]
Imagic Creative Pvt. Ltd. v. Commissioner — 2008 (9) S.T.R. 337 (S.C.) — Referred ...................... [Para 5]
Rainbow Colour Lab v. State of M.P. — 2001 (134) E.L.T. 332 (S.C.) — Referred ........................... [Para 17]
Safety Retreading Company (P) Ltd. v. Commissioner
— 2012 (26) S.T.R. 225 (Tribunal) — Referred ............................................................................ [Para 18]
Safety Retreading Company (P) Ltd. v. Commissioner
— 2017 (48) S.T.R. 97 (S.C.) — Referred ................................................................................. [Paras 6, 18]
State of Karnataka v. Pro Lab. — 2015 (321) E.L.T. 366 (S.C.) — Relied on ........................ [Paras 16, 17, 19]
DEPARTMENTAL CLARIFICATIONS CITED
C.B.E. & C. Instruction F. No. B-11/01/2001-TRU, dated 9-7-2001 ................................................... [Para 2]
C.B.E. & C. Circular dated 7-4-2004 ....................................................................................................... [Para 18]
C.B.E. & C. Instruction F. No. 233/2/2003-CX, dated 3-3-2006 .................................................. [Paras 7, 10]
REPRESENTED BY : Shri Nitin Agrawal, Advocate, for the Appellant.
Shri Himanshu Shrivastava, Advocate, for the
Respondent.
[Judgment per : Ajay Kumar Mittal, C.J. (Oral)]. - This judgment shall
govern the disposal of CEA No. 1/2013, CEA No. 2/2013 and CEA No. 3/2013
preferred by the appellants under Section 35G of the Central Excise Act, 1944
(hereinafter referred to as “the Act”) against the common order dated 7-6-2012
passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi
(for short “the Tribunal”) in Service Tax Appeal Nos. 301/2006, 303/2006 and
302/2006 respectively, as common questions are involved therein and moreover,
these appeals were admitted vide order dated 8-3-2012 on the common substan-
tial questions of law, which read, thus :-
“(1) Whether, while providing photography service whether the use of
the paper upon which an image is printed using certain consuma-
bles and chemicals, being incidental to the provision of service,
amount to sale of goods in terms of Article 366(29A)(b) of the Con-
stitution and whether value of photography service shall be deter-
mined in isolation of cost of such goods?
(2) Whether the term ‘sale’ appearing in exemption Notification No.
12/2003-S.T., dated 20-6-2003, is to be given the same meaning as
given by Section 2(h) of the Central Excise Act, 1944, read with Sec-
tion 65(121) of the Finance Act, 1994 or this term would also include
the deemed “sale” as defined by Article 366(29A)(b) of the Constitu-
tion?
However, for the convenience sake, the facts are being extracted from CEA No.
1/2013.
2. The appellant is engaged in the business of processing, printing and
exposure of colour photographic film and obtained service tax registration for
providing service on photography as provided under Section 65(63) of the Ser-
vice Tax Chapter V of Finance Act, 1994 (for short “the Finance Act”) made ap-
plicable to service tax w.e.f. 16-7-2001. During the scrutiny of ST-3 returns, it was
found that the appellant had not paid the service tax correctly. In reply to the
notice, the appellant informed the Superintendent, Central Excise, Service Tax
that it was paying service tax on 30% of the value of the invoices raised on ac-
count of service rendered to the customers and that the value of photography
paper and processing chemicals used by it in developing of photographic films
GST LAW TIMES  16th July 2020  61