2012 (9) TMI 138 - AT - Service Tax

Waiver of pre-deposit - demand - technical testing and analysis service Held that - Only with effect from 1-5-2006 an Explanation is added to Section 65(106) of the Finance Act, 1994 - By adding this Explanation, the activities of technical testing and analysis also made applicable in respect of testing undertaken for the purpose of clinical testing of drugs and formulations - Show Cause Notice was issued on 3-4-2007 i.e. after the introduction of Explanation to Section 65 (106) of the Act i.e. on 1-5-2006. The demand is from the period 1-7-2003 - applicants had a strong case for waiver of pre-deposit pre-deposit waived

Summary

Issues:
1. Whether the Explanation introduced with effect from 1-5-2006 to Section 65(106) of the Finance Act, 1994 is clarificatory in nature or not.

Analysis:
The case involved two applicants seeking waiver of pre-deposit of Service tax, interest, and penalties. The demand was confirmed for the period before 1-5-2006, asserting liability for Service tax on technical testing and analysis services. The applicants argued that the Explanation added to Section 65(106) from 1-5-2006 extended the scope to clinical testing of drugs. They relied on a Tribunal decision stating the Explanation was not clarificatory, making them liable for Service tax post 1-5-2006.

The Revenue contended that an appeal against the Tribunal's decision was admitted by the Gujarat High Court, citing precedents where appeal admission rendered the lower authority's decision questionable. They referred to cases where pre-deposit was requested based on the clarificatory nature of the Explanation. The main issue was whether the Explanation was clarificatory. The Tribunal's stance in B.A. Research India's case was non-clarificatory, while other cases suggested it was clarificatory.

Considering the conflicting views, the Tribunal noted the admission of the Revenue's appeal by the Gujarat High Court. However, since the Show Cause Notice was issued post the Explanation's introduction, the Tribunal aligned with the non-clarificatory interpretation. Consequently, the applicants were granted a waiver of pre-deposit for Service tax, interest, and penalties, with a stay on recovery during the appeal's pendency. The Tribunal allowed both parties to mention the decision of the Gujarat High Court in the B.A. Research India case after its conclusion.