TaxTMI 
TaxTMI 
2010 (2) TMI 230
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....n 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 nature of diseased condition, identification of disease, prevention of any disease or disorder in human beings or animals;" 3. After the introduction of the explanation by way of amendment, investigation was taken-up and show cause notices were issued to all the three appellants requiring them to show cause as to why service tax should not be recovered from them for the services rendered during the period from 01.7.2003 to 30.4.2006. There is no dispute as regards liability of the ap....
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....ation 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(181) ELT 359 (S.C.) wherein it was held that parts used in manufacture of power driven pumps on which exemption was withdrawn because of omission from Notification No. 46/94-Central Excise dated 01.3.1994 and re-instated by Notification No. 95/94-Central Excise dated 25.4.1994 shows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 submiss....
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....on 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 reality expounded the scope of the definition and therefore, it cannot be clarificatory in nature. 9. We are supported in taking this view from the decisions cited by learned advocate in the case of Skycell Communications Limited. The Tribunal was considering the explanation added to Notification No. 11/97-Customs dated 01.3.1997 by amending Notification No. 03/98-Customs dated 11.2.1998. Originally serial No. 173 provided rate of duty for computer software. By Notification No. 03/98-Cus., the explanation was added expanding th....
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....en 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 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 normal course, irrespective of the way explanation is added, it would not be retrospective. It has to be examined with reference to the scope and in the light of Hon'ble Supreme Court,s observations in Sedco Forex Case. As regards the decision by the learned DR, as regards Plain Films and BOPP Films, the explanation was in reality clarificatory in nature. The term....