Applicability of Service Tax on photography Service - Whether cost of goods / material used is deductible from the value.

There is very long history to determine the real nature of photography service. Photography service is neither sale nor works contract as held by the honorable Supreme Court in its earlier judgments.

Now, the issues are arising in Service Tax and different Courts / Tribunal has taken different stands in different situations.

A brief reference of these cases with departmental clarifications is as follows:

1. Clarification / Letter No. F.No.B.11/1/2001-TRU, Dated 9th July, 2001

In this letter, department clarified that,

The value of taxable service is the gross amount charged from the customer for the service rendered. However, the cost of unexposed photography films sold to the customer is excluded. The service provider claiming benefit of the cost of film should be advised to show them clearly on the invoices along with description and particulars of the film. Otherwise, the claim will not be considered as admissible. No other cost (such as photographic paper, chemicals, etc.) is excluded from the taxable value.

2. Decision of Apex Court in the matter of C K Jidhees versus Union of India reported in 2006 -TMI - 288 - Supreme Court

In this case, Apex Court held that cost of material used in providing photograph service is not deductible.

3. Clarification / Letter M.F. (D.R.) Letter F. No. 233/2/2003-CX. 4, dated 3-3 -2006

On the issue of deduction of cost of goods / material from the value of photography service in view of notification no. 12/2003, board clarified that,

The matter has been examined by the Board. The intention of the Notification No. 12/2003-S.T., dated 20-6-2003 is to provide exemption only to the value of goods and material sold subject to documentary evidence of such sale being available. Therefore, in case, the goods are consumed during the provision of service and are not available for sale, the provision of the said notification would not be applicable. Therefore, in supercession of clarification to contrary, it is clarified that goods consumed during the provision of service, that are not available for sale, by the service provider would not be entitled to benefit under Notification No. 12/2003-S.T., dated 20-6-2003.

4. Tribunal decision dated 6-6-2006 in the matter of LAXMI COLOR (P) LTD. versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II reported in 2006 -TMI - 380 - CESTAT, NEW DELHI

CESTAT held that there is no element of sale of goods in photography service. In this case, CESTAT has followed the judgment of Apex Court in the matter of C. K. Jedees (Supra)

5. Tribunal decision dated 30-10-2006 in the matter of SHILPA COLOR LAB Versus COMMISSIONER OF C. EX., CALICUT reported in 2007 -TMI - 1022 - CESTAT,BANGALORE

In this case, CESTAT overruled the circular dated 3-3-2006 (supra) and judgment of Apex Court in the matter of C. K. Jedees (Supra). But, it has followed the judgment of Larger Bench of honorable Supreme Court in the matter of Bharat Sanchar Nigam Ltd. and Anr. v. UOI & Others - reported in 2006 - TMI - 309. Accordingly, tribunal has allowed the deduction of value of goods / material used for providing photography service.

While delivering the judgment, CESTAT discussed and relied upon certain other decisions of honorable Supreme Court.

6. Tribunal decision dated 17-9-2007 in the matter of COMMISSIONER OF C. EX., MYSORE Versus EXPRESS COLOR LAB. Reported in 2008 -TMI - 2777 - CESTAT, BANGALORE

In this case, CESTAT followed the decision of Shilpa Color Lab (Supra) and allowed the deduction of value of goods / material sold while providing the photograph services.

7. High Court of Rajasthan delivered its order dated 20-7-2007 in the matter of WESTERN RAJASTHAN COLOUR LAB ASSOCIATION Versus UNION OF INDIA reported in 2008 -TMI - 3416 - HIGH COURT RAJASTHAN

In this matter, honorable HC followed the decision of honorable Supreme Court in the matter of C. K. Jedees (Supra) and denied the deduction of value of goods / material from the gross value.

8. Tribunal decision dated 28-11-2008 in the matter of JYOTI ART STUDIO Versus COMMISSIONER OF CENTRAL EXCISE, HYDERABAD reported in  2008 -TMI - 3841 - CESTAT, BANGALORE

In this matter, CESTAT allowed the deduction of value of goods / material from the gross value.

Moreover, CESTAT held that, deduction is available even if the details of inputs used need not be mentioned in the invoices/bills issued by them, as there is no specific clause in the Notification no. 12/2003.

9. Tribunal decision dated 13-8-2007 in the matter of SHRI ROOPCHHAYA COLOUR STUDIO Versus COMMR. OF C. EX., HYDERABAD reported in 2008 -TMI - 4717 - CESTAT, BANGALORE

In this decision also, tribunal has allowed the deduction of value of goods / material from the gross value.