TMI Blog2010 (2) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... ree appeals are being decided by this common order since the issue involved is same in all the three appeals. All the three appellants are engaged in the activity of Clinical Research/ Testing and Analysis for various pharmaceutical companies. Technical testing and analysis service was made taxable from 01.7.2003 under Section 65(106)/ 65(107), with effect from 01.7.2003. 2. Upto 01.5.2006 when an amendment was made to Section 65(106) of the Finance Act, 1994 (the Act), the Section read as under :- hnical testing and analysis means any service in relation to physical, chemical, biological or any other scientific testing or analysis of goods or material or any immovable property but does not include any testing or analysis service provided in relation to human beings or animals . By amendment, the following explanation was introduced into the above Section :- Explanation - r removal of doubts, it is hereby declared that for the purpose of this clause, technical testing and analysis includes testing and analysis undertaken for the purpose of clinical testing of drugs and formulations, but does not include testing or analysis for the purpose of determination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have retrospective effect. 7. On the other hand learned DR on behalf of the Revenue submits that the starting sentence of the explanation makes it very clear that the amendment is retrospective. If the intention was to give only prospective effect, the explanation would not have started with this sentence. He also drew our attention to the decision of the Tribunal in the case of EPCOS India Pvt. Limited - 2008 (84) RLT 428 (CESTAT- Mum.) with regard to interpretation of explanation introduced in the Notification No. 25/99-Customs dated 28.2.1999. In that case, it was held that explanation introduced in the notification would have retrospective effect. Further, he also relied upon decision of this Tribunal in the case of M/s. Yogi Metalised Products Pvt. Limited and others wherein it was held that amendment to Notification 20/2001-Cus. dated 01.3.2001 clarifying that plain film would include BOPP film also is clarificatory in nature and therefore effective retrospectively. He also cited the decision of the Hon'ble Supreme Court in the case of WPIL Limited vs. CCE, Meerut (UP) - 2005 (181) ELT 359 (S.C.) wherein it was held that parts used in manufacture of power dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding effect on Section 65 (106). However, I do agree that there is some ambiguity in the interpretation of Section 65 (106) as it stood earlier. It is for this very reason that an explanation had to be introduced in this Section. We are unable to agree with the Commissioner's observation. The explanation introduced by amendment gives an impression that the purpose is to make it clear that the definition does not include testing and analysis for the purpose of determination of nature of diseased condition, identification of disease, prevention of any disease and disorder in human beings or in animals. However, we find that the original definition clearly excluded all these services from the definition since the expression, any service provided in relation to human beings and animals is very wide and therefore was no need for exclusive definition. On the other hand the definition prior to amendment would give an impression that technical testing and analysis can be definitely said to be in relation to human beings or animals was excluded. To make it includable in the definition, the amendment becomes necessary. Therefore, as contended by the appellants, the amendment in real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 17 as follows :- As was affirmed by this Court in Goslino Mario a cardinal principle of the tax tax is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. (See also Reliance Jute and Industries Lit. vs. CIT). An Explanation to a statutory Provision may fulfill the purpose of clearing up an ambiguity in the main Provision or an Explanation cam add to and widen the scope of the main Section. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main Provision came into force. But if it changes the law it is not presumed to be retrospective, irrespective of the fact that the phrases used are it is declared or for the removal of doubts. Further, the service tax Commissionerate, Ahmedabad also had clarified that services rendered by the appellant is not liable to service tax, supports the view that there was no doubt to be clarified with retrospective effect. 11. Analysis of the decisions cited by learned advocate for the appellants shows that whenever the explanation restricts the scope of exclusion or e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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