Significance of the word ‘And’ used in the definition of Taxable Services

[Surender Gupta]

In the clause (105) of section 65 of the Finance Act, 1994, providing the meaning of taxable services, at many places the word "And" has been used. The use of word "And" is very important and relevant aspect to determine the exact nature of taxability of a particular service. For an example, in sub-clause (j) clearing and forwarding service is a taxable service. In this sub-clause, a person who is engaged in providing either clearing services or forwarding services alone can not be liable to pay service tax under sub-clause (j). This situation is upheld by the honorable CESTAT.

In, MEDPRO PHARMA PVT. LTD. v. COMMISSIONER OF C. EX., CHENNAI reported in 2006 (3) S.T.R. 355 (Tri.-LB.),= [2006-TMI-433-CESTAT,NEW DELHI] honorable tribunal has held that, "Context of use of the word 'and' between the words 'clearing' and 'forwarding' relevant for interpretation - Segregation of holistic concept of 'clearing and forwarding' into divisible activities not possible".

Further, the honorable Supreme Court has differentiated between the word "OR" and the word "AND" in Ape Belliss India Ltd. v. UOI, 2001 2008 -TMI - 45935 - SUPREME COURT OF INDIA. In this matter, honorable Supreme Court has held that, "This is clear from the use of the word 'and'. If the intention of the trade notice was to treat the two types of alloy steels as stainless steel then it would have been made clear by using the word 'or' instead of the word 'and'. In the said view of the matter, we are of the opinion that if an alloy steel is known as stainless steel in the trade and also has more than 11% chromium in it then alone the same could be considered as stainless and not otherwise. In the instant case, assuming that the alloy steel imported by the appellant is known in the trade as stainless steel still since on an analysis it is found that the chromium content is less than 11%, the same could not have been classified as stainless steel for the purpose of Customs Tariff Act, 1975 because the second condition as to the content of the chromium is not satisfied".

Therefore, before making a decision on taxability of a particular service, due case must be given to the word "And" used in between.

Here is the list of services in which the word 'And' has been used: -

Sr. No.	Clause65(105)	Name of the Service	Definition : - Taxable Service Means any service provided or be provided: -
1	(j)	Clearing and Forwarding	to a client, by a clearing and forwarding agent in relation to clearing and forwarding operations, in any manner;
2	(zh)	on-line information and database access or retrieval	to a customer, by any person, in relation to on-line information and database access or retrieval or both in electronic form through computer network, in any manner;
3	(zm)	banking and other financial services	to a customer, by a banking company or a financial institution including a non-banking financial company, or any other body corporate or [any other person], in relation to banking and other financial services;]
4	(zw)	health and fitness	to any person, by a health club and fitness centre in relation to health and fitness services
5	(zza)	storage and warehousing of goods	to any person, by a storage or warehouse keeper in relation to storage and warehousing of goods;
6	(zzh)	technical testing and analysis	to any person, by a technical testing and analysis agency, in relation to technical testing and analysis;
7	(zzi)	technical inspection and certification	to any person, by a technical inspection and certification agency, in relation to technical inspection and certification;
8	(zzv)	survey and exploration of mineral	to a customer, by any person, in relation to survey and exploration of mineral;
9	(zzza)	site formation and clearance, excavation and earthmoving and demolition	to any person, by any other person, in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities;
10	(zzzc)	survey and map-making	to any person, by any other person, other than by an agency under the control of, or authorised by, the Government, in relation to survey and map-making;
11	(zzzg)	compilation and mailing	to any person, by any other person, in relation to mailing list compilation and mailing