TMI Blog2008 (3) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... udio or anywhere else. - colour laboratories would be a part of the “photography studio or agency” involved in providing the service to the consumer and are amenable to the service tax – held that service tax on colour photo laboratory is not unconstitutional – service tax can be levied . - 1108 of 2003 - - - Dated:- 5-3-2008 - R.S. Garg and Shantanu Kemkar, JJ. Shri Shashank Verma, for the Petitioner. Shri V. Bhide, Counsel, for the Respondent. [Judgment per : R.S. Garg, J.].- By this petition filed under Article 226 of the Constitution of India the petitioners are seeking the following reliefs: (a) That, this Hon'ble Court may be pleased to declare Section 67 in its present form vis-a-vis the petitioner's ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate Writ order or direction thought just and proper in the circumstances of the case may also be passed in favour of the petitioner. (h) Cost of the petition. 2. The submission of the petition in nutshell is that provisions of Section 67 of Finance Act, 2001 be declared ultra vires the Constitution, void and inoperative. According to the petitioner the circular dated 9-7-2001 issued by the respondent is also ultra vires the Constitution as it runs contrary to the provisions of the law. 3. The short facts necessary for disposal of this writ petition are that the petitioner's firm is engaged in the activity of developing of exposed negatives, film processing, and printing of photographs. In the year 1994 service tax ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the arguments Shri Bhide, learned counsel for the respondents, submitted that an identical challenge was made to the provisions of the Finance Act and inclusive definition of photography , photography studio and/or agency but the same had been turned down by the Apex' Court in the matter of C.K. Jidheesh v. Union of India and others - 2006 (1) S.T.R. 3 (S.C.) = 2005 AIR SCW 5905, therefore, nothing survives in the petition. The respondents also placed their reliance on a Division Bench judgment of the High Court in the matter of Kerala Colour Lab. Association v. Union of India - 2006 (2) S.T.R. 554 (Ker.) = 2003 (156) E.L.T. 17 (Ker.) to contend that the colour lab would come within the mischief of the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no special reasons to treat the definition as closed definitions. The scope of the subject should always be considered in its true perspective. 10. In the matter of South Gujarat Roofing Tiles Manufacturers Association and another (supra) the question before the Supreme Court was that the Entry 22 which related to Employment in Potteries Industry provided an explanation that for the purposes of the said entry potteries industries includes the manufacture of the following articles of pottery, viz. - (a) Crockery. (b) Sanitary appliances and fittings. (c) Refractories. (d) Jars. (e) Electrical accessories. (f) Hospital ware. (g) Textile accessories. (h) Toys. (i) Glazed Tiles In the said matter, the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or was violative of the Finance Act, 1994 as amended by the Act 14 of 2001. In view of the said judgment one of the main challenge to the letter-cum-circular dated 9-7-2001 does not survive. The Supreme Court in the matter of C.K. Jidheesh (supra) found that the petitioner before the Supreme Court got separated from the Kerala Colour Labs Association's SLP on the ground that the issues were similar to those raised in an S.L.P filed by the State of Meghalaya challenging the order of the Gauhati High Court dated 5-9-2001. The Supreme Court observed that though the challenge was ostensibly to the letter issued by the Ministry of Finance but the real challenge is to the amendment in the Finance Act and the letter dated 9-7-2001 was simply c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y positive prints in the desired size, in the process the cost of material involved and passed on the consumer was far greater than the service involved. It was submitted before the High Court that in view of the peculiar type of service rendered by the colour laboratories where 80% of the value of property is passed to the consumer consists of costs of photographic film, value of service being negligible, it would be wholly erroneous to treat colour laboratories and photography studio as rendering service as understood generally. The contention was repelled by the Division Bench holding that the colour laboratories were also providing service to the consumers. 15. The colour photo laboratory in fact is an extended design of a studio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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