TMI Blog2008 (10) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ders-in-Appeal. Sl. No. Appeal No. Orders-in-Appeal No./Date Passed by 1. ST/144/2006 OIA No. 21/2006-S.T. dated 10-3-2006 The Commissioner of Customs Central Excise (Appeals), Cochin. 2. ST/154/2006 OIA No. 22/2006-S.T. dated 10-3-2006 -do- 3. ST/155/2006 OIA No. 31/2006-S.T. dated 10-3-2006 -do- 4. ST/186/2006 OIA No. 73/2006-S.T. dated 28-3-2006 -do- 5. ST/188/2006 OIA No. 75/2006-S.T. dated 28-3-2006 -do- 6. ST/189/2006 OIA No. 76/2006-S.T. dated 28-3-2006 -do- 7. ST/190/2006 OIA No. 77/2006-S.T. dated 28-3-2006 -do- 8. ST/260/2006 OIA No. 3/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary Services for the various periods in terms of the show cause notice and the impugned order. 3. The finding given by the Commissioner (Appeals) in OIA 74/06 dated 24-3-2006 in para 6 is reproduced herein below; I have gone through the records of the case and the submissions made in the grounds of appeal at the time of personal hearing and in the argument note filed. In the instant case the appellant has rendered the service of collection of billed amount of BSNL from the customer of BSNL and received commission for such services. The issue to be decided is whether the aforesaid activities are a 'customer care service' on behalf of the client as defined under Section 65(19)(iii), (vi) and (vii). As per the agreement with the client, M/s. BSNL, the appellant were to accept payments of telephone bills in cash/local cheques/Demand Draft. The appellant is to hand over the receipt portion of the telephone bill to the bearer of the telephone bill after distinctly stamping the date of collection, amount received, mode of collection such as cash/cheques/Demand Draft etc. with initials of the collecting official. They should stamp similar details on the counterfoil of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of business auxiliary service refers to promotion or marketing or sale of goods produced or provided by or belonging to the client or any service incidental or ancillary to any activity specified in this regard in terms of billing issue or collection or recovery of cheques, payments, maintenance of accounts and remittances, inventory management evaluation or development of prospective customer or vendor, publication, public relation services, management or supervision would be included into this category. They contend that italic (iii) of the definition of 'business auxiliary service' refers to any customer care. It is their contention that they do not satisfy the category of promotion or marketing etc., as in italic (i) or italic (iii) pertaining to customer care service for the simple reason that they are not promoting or marketing or selling the goods produced by the BSNL and in this regard any activity incidental to the italic (i) with regard to billing or issue or collection of cheques are not being done. The customers of BSNL are merely depositing the amount due to the BSNL into the BSNL ac count i.e. the appellant being a banking industry are giving the facility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices (I) P Ltd. v. CCE (ST) [2007 (8) S.T.R. 261 (Tri.-Che.)] (4) Bridgestone Financial Services v. CST, Bangalore [2007 (8) S.T.R. 505 (Tri.-Bang)]. It is his submission that the relationship between the appellant bank and that of their client BSNL is that of customer care service provided on behalf of the client. They have received the commission from BSNL for this activity. Therefore for having provided the services on behalf of their client and receiving commission, they appropriately come within the category of 'customer care service'. He submits that the category under italic (iii) in 'customer care service' provided on behalf of the client should not be read independent of italic (i) but to be read along with italic (vii). It refers to services incidental or ancillary to any activity specified from italic (i) to italic (vii). 6. I have carefully considered the submissions. I notice that the judgments referred to by learned SDR are not akin to the facts of the case. In case of Bellary Computers (supra), the appellant was providing software and hardware for revenue management system for electricity supply concern. The matter was examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 2 of the Central Excise Act, 1944 While the definition of banking and other financial services under Section 65(12) is as follows: Banking and other financial services means (a) the following services provided by a banking company or a financial institution including a non-banking financial company or any other body corporate, namely (i) Financial leasing services including equipment leasing and hire-purchase by a body corporate; (ii) Credit card services; (iii) Merchant banking services; (iv) Securities and foreign exchange (forex) broking; (v) Asset management including portfolio management, all forms of fund management, pension fund management, custodial, depository and trust services, but does not include cash management; (vi) Advisory and other auxiliary financial services including investment and portfolio research and advice, advice on mergers and acquisitions and advice on corporate restructuring and strategy; (vii) Provision and transfer of information and date processing; and (b) Foreign exchange broking provided by a foreign exchange broker other than those covered under sub-clause (a); As can be seen from the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the client is coming to the clients account. Therefore, the activity is that of cash management which is excluded from 'banking and other financial services'. The appellants have made out a case that they are not covered under the category of 'customer case (sic) (care) service' in the main category of 'business auxiliary service' and hence their contention is required to be accepted. Learned representative for the appellants referred to the judgment in the case of Dr. Lal Path Labs Pvt. Ltd. v. CCE, Ludhiana [2006 (4) S.T.R. 527 (Tri.-Del.)] paras 1 to para 12 are reproduced herein below: The appellant, herein run Sample Collection Centres' for specialised laboratories like Dr. Lal Path Labs Pvt. Ltd., New Delhi, M/s. Speciality Ranbaxy Ltd. They maintain the collection centre, draw/collect samples, process the samples to the extent required and forward (through courier service etc.) the samples to the test laboratories. The relationship with the principal is covered by Agreement. The basic terms are that the collection centres would have facilities and trained employees for drawal of blood samples, will carry out the essential processing (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (106) does not include testing or analysis in relation to human beings or animal , the testing service rendered by the appellant is excluded from service tax. Learned counsel for Ludhiana Collection Centre for Dr. Lal Path Labs Pvt. Ltd. has pointed-out that the Commissioner has noted in the impugned order that what the appellant does may also be essential part of testing and analysis procedure carried out at parent company's lab., but has incorrectly held that the activity carried out by the appellant amounts to promotion or marketing of service provided by the client M/s. Dr. Lal Path Labs, New Delhi and is covered under Section 65(19)(ii) of the Act as defined therein during the relevant period . The point made is that the finding is contrary to the factual position noted. The contention is that a service cannot simultaneously be part of testing and analysis, and promotion or marketing of service . 6. Learned counsel would also submit that a service that has specifically listed (technical testing and analysis) under one heading, cannot be subjected to tax under another heading (Business Auxiliary Service) simply because that service remains excluded from levy under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh statutory definition, any testing or analysis in relation to human beings or animal should be treated as outside the purview of levy under that heading and would attract service tax, if that activity fell under any other taxable service under the statute, It is the contention of the learned SDR that since the present appellants carry out advertisements for their clients by keeping their board etc. and sell the services by raising bills, it is clearly a promotion or marketing service and would attract levy accordingly. He would also submit that sub-clause (iv) in the definition of 'business auxiliary service' specifically includes' any incidental or auxiliary support service'. The point emphaised is that since the appellants perform many services incidental to the testing and analysis service such as collecting samples, billing, supplying test reports, they clearly come within the scope of levy as any incidental or ancillary support service. 10. With regard to the contention of the appellant that all services 'in relation to' technical testing and analysis service are also excluded from the service tax, the contention of the learned SDR is that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis service. 12. It is well settled that once there is a specific entry for an item in the tax code, the same cannot be taken out of that specific entry and taxed under any other entry. In the present case, revenue is seeking to discard the specific entry and to bring the appellant's services under a very general entry, only because under the specific entry no tax is payable. This approach is contrary to the scheme of the legislation. What is specifically kept out of a levy by the legislature cannot be subjected to tax by the revenue administration under another entry. In terms of the above paras it is clear that cash management service has been netted out from specific category. Therefore, the revenue cannot bring that activity under any other category of customer care services. Likewise this judgment of Dr. Lal Path Labs Pvt. Ltd., has been confirmed by Apex Court (sic) as reported in 2007 (8) S.T.R. 337 (P H). In the light of the above observation, I find that the impugned orders are not legal and proper, hence they are set aside by allowing the appeals. 5. Heard learned JCDR who reiterated the department's view. 6. On a careful consideration, it is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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