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2015 (11) TMI 477 - CESTAT NEW DELHI

2015 (11) TMI 477 - CESTAT NEW DELHI - 2016 (41) S.T.R. 460 (Tri. - Del.) - Imposition of penalty - Benefit of Section 80 - Malafide intention - Invocation of extended period of limitation - Held that:- Respondent was an individual photographer who was providing photography service by clicking photographs and getting them developed and printed outside. It is not the case of Revenue that he was registered under State or Municipal law relating to shop and establishment or any other laws of State f .....

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h of October, 2006. (and w.e.f.1.3.2005, the appellant is eligible for small scale exemption under Notf.No.6/2005-ST). Thus, not only the appeal of the revenue is devoid of any merit, the demand itself needs to be set aside - Decided in favour of assessee. - Appeal No.ST/679/2009-CU (DB) - Final Order No.52723/2015 - Dated:- 6-8-2015 - Mr.R.K.Singh, Member (Technical) And Ms.Sulekha Beevi C.S., Member (Judicial) For the Petitioner : Shri Govind Dixit, DR For the Respondent : Shri Khemchand Gupta .....

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, 2003 to January, 2006 under photography service on the ground that the appellant did not pay service tax on the gross amount received for rendering service. 2. Revenue has contended that the Commissioner (Appeals) has not given any basis to give finding that there was no malafide on the part of the respondent and therefore section 80 is not invokable. 3. Shri Khemchand Gupta (the respondent) who came for hearing from Sonebhadra (U.P.) stated that he did not have any facility of photo developin .....

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on of malafide on his part. 4. We have heard the contention of Revenue and given our anxious attention to the facts of this case. We find that Notification No.6/2001-ST dt.9.7.2001 which was operational during the relevant period states as under:- Exemption to still photography by photography studio or agency which is other than a Commercial concern- In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), the Central Government being satisfied that it is necessar .....

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graphy Notification No.6/2001-ST., dated the 9th July, 2001, has been issued. Accordingly, service providers who are registered under various State/Municipal laws relating to shop and establishments or any other laws of State which is in force for the time being for carrying out commercial activity only are liable to service tax. Individual professional photographers and other providing still photography service, but who do not have fixed place of business as a shop or office and who are not reg .....

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shment or any other laws of State for carrying out commercial activity. So Shri Gupta qualified for coverage within the scope of Notification No.6/2001-ST when read with CBEC circular dated 27.12.2001 making the demand unsustainable. 6. Also the entire demand for the period May,2003 to January, 2006 is only ₹ 30,416/- and as per the SCN the gross amount received was ₹ 3,80,205/- for the entire period of demand. For the period 1.3.2005 onwards Shri Gupta was also eligible for small sc .....

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hearing and then, after a pause, with his voice choking, lips quivering and hands trembling in a fold added that he would not be able to make any more visits to attend the hearing for health and financial reasons, it seemed that honesty and truth personified in a state of helplessness were crying for justice and, in the process, though unintended, putting the system (to which we too belong) to shame (for want of a better world) that an appeal should come from Revenue before CESTAT against Commis .....

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