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TMI Blog2015 (10) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Issue is no more res integra - Amendment in reality expounded the scope of the definition and therefore, it cannot be clarificatory in nature – Impugned orders are unsustainable and are set aside - Decision made in the case of B.A. Research India Ltd. [2010 (2) TMI 230 - CESTAT, AHMEDABAD] and Synchron Research Services Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants activities are covered under the service tax liability. The appellants contested the show cause notice on merits as well as on limitation. The adjudicating authority did not agree with the appellants and rejected the contentions and confirmed the demands with interest and also imposed penalties. 5. Learned Counsel appearing for the appellants would draw our attention to the definition of Technical Testing and Analysis and submit that prior to introduction of the explanation i.e. from 01.05.2006, the activities of Clinical Trial and Tests of new drugs carried out by the appellants cannot be held to be liable to service tax. It is his submission that an Explanation which is added to Section 65 (106) has expanded to the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STR 268 (Tri. - Ahmd.) and submit that it was considered by the Bench that the Explanation is only giving clarification to the main definition. 7. We have considered the submissions made by both the sides and perused the records. 7.1 On perusal of the records we find that the facts are not much in dispute, in as much during the period 01.07.2003 to 31.03.2006 the appellant undisputedly rendered the services of clinical testing of new drugs to the pharmaceutical companies. It is the case of the Revenue that this services would be taxable due to an addition of Explanation in respect of the definition of the Technical Testing and Analysis as per Section 65 (106) of the Finance Act, 1994. We find that the issue is no more res integra and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or any other scientific testing or analysis of goods or materials, but does not include any testing or analysis service provided in relation to human beings or animals. What this means is that the material which is tested (i.e. the specimen) should not be a human being or an animal is not included in the definition. However, it would certainly 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 173 provided rate of duty for computer software. By Notification No. 03/98-Cus., the explanation was added expanding the meaning of computer software and specifically provided that term does not include software required for operation of any machine performing a specific function, other than data processing and incorporating or working in conjunction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also Reliance Jute and Industries Lit. vs. CIT). An Explanation to a statutory Provision may fulfill the purpose of clearing up an ambiguity in the main Provision or an Explanation can add to and widen the scope of the main Section. If it is in its nature clarificatory then 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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