TaxTMI 
TaxTMI 
2010 (2) TMI 230
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....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 exp....
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....of doubts, it hereby declared", therefore, department has taken a stand that the notification would have retrospective effect. Just because of such declaration, amendment cannot have retrospective effect. For this purpose the learned advocate has relied upon following cases :- (a) Sedco Forex International Drill Inc. vs. Commr. Income Tax - (2005)12 Supreme Court Cases 717. (b) Commissioner of Income Tax vs. I.T.D.C. - Income Tax reports vol-211 page No. 400 (c) Gothi Thermoforming Inds. vs. CCE, Chennai & Pondicherry - 2007 (211) ELT 97 (Tri. Chennai) (d) Commissioner of Customs (Airport) Chennai vs. Skycell Communications Limited - 2008 (232) ELT 434 (Tri. LB) 6. Further, it was also submitted that M/s. B.A. Research India Limited, o....
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....39;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(181) ELT 359 (S.C.) wherein it was held that parts used in manufacture of power driven pumps on which exemption was withdrawn because of omission from Notification No. 46/94-Central Excise dated 01.3.1994 and re-instated by Notification No. 95/94-Central Excise dated 25.4.1994 shows that Notifications could have retrospective effect. He also relies upon the decision of the Hon'ble Supreme Court in the case of G o I vs. Indian Tobacco Association - 2005 (187) ELT 162 (S.C.) in support of his contention that exemption notification would have retrospective effect. 8. We have considered the submissions made by both the sides. The Commissioner's observation wh....
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....rtainly include all types of tests, whether clinical trials or otherwise, conducted on the drugs themselves. This position continues unchanged even after the introduction of the explanation. Therefore, I reject the noticee's submission that the amendment introducing the explanation had any expanding 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 ....
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....njunction with an automatic data processing machine. The Tribunal observed that the explanation imposed restriction prejudicially on importers of computer software and hence cannot be given retrospective effect. In the case of Gothi Thermoforming Inds. the Tribunal observed that insertion of clause (f) in Notification No. 16/97 had the effect of reducing the scope of exemption of intermediate products (inputs) from payment of duty, in this view the clause (f) has to be seen as substantive provision rather than clarificatory of pre-existing provisions of the notification. In the case of Commissioner of Income Tax vs. Rajasthan Mercantile Co. Limited and others reported in ITR, Volume-214 page No. 400, Hon'ble Delhi High Court observed as....
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....ime 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 enhances the scope of inclusion, it cannot be held to be retrospective unless there are other evidence and circumstances which would take one to such conclusion. In the ....