TMI Blog2007 (9) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Tribunal, New Delhi (P-3) by holding that the services rendered by the assessee-respondent do not fall in any of the category specified in the definition of 'Business Auxiliary Service' as per sub-Section (19) of Section 65 of the Finance Act, 1994. The argument raised by the revenue is that the activity carried out by the assessee-respondent amounted to promotion or marketing of service provided by its principal M/s. Dr. Lal Path Lab, New Delhi has been rejected by the Tribunal. The revenue has claimed that the following substantial question of law would arise for the determination of this Court Whether the Hon'ble Tribunal is correct in holding that the services rendered by the respondents do not fall under any cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The show cause notice also contemplated as to why penalty should not be imposed upon them under Sections 75-A, 76 and 77 of the Act for failure to get itself registered and for non-payment of service tax and also for not filing ST 3 Return. The show cause notice was contested and after detailed discussion, the Assistant Commissioner Central Excise, Division-III, Ludhiana passed an order on 30-11-2004 confirming the demand of service tax by placing reliance on Section 73(a) by invoking the extended period of 5 years. He also raised demand of interest from the assessee-respondent under Section 75 of the Act and imposed penalty equal to the amount of tax payable under Section 76. Therefore, penalty of Rs. 1,000/- for contravening provision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the scope of testing and analysis service and are taxable as business auxiliary service. This approach is hard to understand. There could be no denying that in the absence of drawing of blood samples, there can be no testing. Further, even if the two services are seen as entirely separate and different services, drawing of sample and initial processing of the same are clearly, connected or incidental or ancillary to testing and analysis. We have already reproduced the definition of technical testing and analysis service in para 4 of this order. That definition is very broad in its scope. It covers any service in relation to testing and analysis service . Thus, drawing of sample will come within the scope of the definition: The dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be taxed under some other general heading. Legislature has specifically recognized technical testing and analysis as a separate service for the purpose of levy. As to how the technical test and analysis are to be taxed under that heading is also for the legislature to decide. In the present case, through definition, the legislature has excluded testing or analysis of human beings or animal outside the levy. The definition clearly states the legislative intention not to impose any tax on such excluded technical testing and analysis. If the legislature had any intention to tax the testing or analysis in relation to human being or animal at a different rate than other technical test and analysis service, the legislature would have separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental or auxiliary support services such as the ones mentioned therein would fall within the definition. As already noted, the services provided by the appellants do not come within the categories of services mentioned in the definition, therefore, these services cannot fall within serial No. (iv).' 6. Learned Counsel for the revenue has argued that there is element of promotion or marketing provided by the assessee-respondent to the principal client and, therefore, the activities of the assessee-respondent are covered by Section 65 (19) (ii) of the Act. According to the learned Counsel, by virtue of the activity of the assessee-respondent drawing samples of blood, urine and stool etc., they end up advertising and advancing the bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of clinical testing of drugs and formulations; but does not include testing or analysis for the purpose of de termination of the nature of diseased condition, identification of a disease, prevention of any disease or disorder in or animals; 8. A perusal of the afore-mentioned provision makes it clear that the expression 'technical testing and analysis' does not include any testing or analysis service provided in relation to human being or animals. The explanation go to the extent of excluding from the afore-mentioned definition, a testing or analysis for the purposes of determination of the nature of diseased condition, identification of a disease, prevention of any disease or disorder in human beings or animals. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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