TaxTMI 
TaxTMI 
2007 (9) TMI 26
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 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 category specified in the definition of 'Business Auxiliary Service' and is within the scope of 'Technical Test and Analysis Services' and whether service tax is payable on such services." 2. Facts in brief are that ther....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 of Section 75-A of the Act to get itself registered with the Central Excise Department under Section 77 of Central Excise Act, was imposed. 4. On appeal before the Commissioner, the demand of tax was upheld being covered by Section 65 (19) (i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 as to whether drawing of sample forms part of testing and analysis service is not relevant in view of the sweeping nature of the definition. If the service is "in relation to" testing the service will get classified under technical testing and an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 separately specified the levy. In the present case, clearly the intention of the legislature is not to impose any levy at all on testing or analysis of human beings or animals. Therefore, the contention of the learned SDR to the contrary is not a legally c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 business interest of its principal and, therefore, the afore-mentioned activity should be sufficient to bring the assessee respondent within the definition of 'Business Auxiliary Service'. 7. Having heard the learned Counsel and closely perusing the o....