M/s. P.S. Vinod Versus Commissioner of GST & Central Excise Chennai
Service Tax
2019 (2) TMI 91 – CESTAT CHENNAI – 2019 (24) G. S. T. L. 50 (Tri. – Chennai)
CESTAT CHENNAI – AT
Dated:- 22-11-2018
Appeal No. ST/124/2011 – Final Order No. 43020/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri J. Shankarraman, Advocate for the Appellant
Ms. T. Usha Devi, DC (AR) for the Respondent
ORDER
Per Bench
Brief facts are that during internal audit of the Audit Section, it was noticed that the appellant who is a proprietor of the concern has been rendering photography service as an individual professional photographer. As per Finance Act, 1994, the photography service was brought within the service tax net with effect from 16.7.2001 and the definition of the said services included any professional photographer or any person engaged in the business of rendering service relating to photography. The departme
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photography service was expanded with effect from 1.5.2006 covering any person providing photography service. Prior to 1.5.2006 only professional photographer or a commercial concern providing such service is covered under the definition of photography studio or agency. The appellant being a person who has only the skill of taking photography cannot be described as a professional photographer or a commercial concern. He used to get orders from various companies and also make advertisement films for such work. He picturises the events for which he gets paid by way of cheque. Since the appellant has no studio and not being an agency, there is no liability to pay service tax. The ld. counsel also argued on the ground of penalty. He submitted that the appellant since was not having any studio and was doing the photography on his own, was under the impression that he is not liable to pay service tax and therefore had not discharged any service tax. It was his bonafide belief that he was no
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e. For better appreciation of the issue, relevant sections are reproduced as under:-
“Section 65(79) of the Finance Act, 1994
Photography Studio or Agency means any professional photographer or a commercial concern engaged in the business of rendering services relating to Photography.
Section 65(105)(zb)
The taxable service is a service provided or to be provided to a customer by a photography studio or agency in relation to photography in any manner
Section 65(78)
Photography includes still photography, motion picture photography, laser photography, aerial photography or fluorescent photograph”
6. As seen from the provisions of law extracted above, photography studio or agency means any professional photographer or a commercial concern engaged in the business of rendering service relating to photography. Undisputedly, the appellant is engaged in doing advertisement film and such other activities. He also renders service in the cinematographic field. A person who renders s
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erated with the department and has furnished all details. No unaccounted transactions were unearthed. On these facts, the penalty imposed under section 78 is unwarranted. Taking into consideration these facts and that the appellant had entertained a reasonable view as to whether he would fall within the definition of photography service as he was not having any studio for rendering taxable service and taking into consideration the bonafide belief of the appellant, we are of the considered view that the penalty imposed under section 78 is unwarranted and is set aside by invoking section 80 of the Finance Act, as it stood during the relevant period.
8. From the above discussions, the impugned order is modified to the extent of setting aside the penalty imposed under section 78 only without interfering with the rest of the order. The appeal is partly allowed in the above terms, with consequential relief, if any.
(Operative portion of the order was pronounced in open court)
Case laws
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