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TMI Blog2008 (1) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... tegory Banking and Other Financial Services . They were collecting telephone bills from the customers of BSNL. The BSNL has facilitated the customers for depositing the bills into the account of BSNL with the appellant bank. For the services carried out, they received commission. The department has brought this activity of appellant under the category of Business Auxiliary Services for the various periods in terms of the show cause notice and the impugned order. 3. The finding given by the Commissioner (Appeals) in OIA 74/06 dated 24-3-2006 in para 6 is reproduced herein below: I have gone through the records of the case and the submissions made in the grounds of appeal at the time of personal hearing and in the argument note filed. In the instant case the appellant has rendered the service of collection of billed amount of BSNL from the customer of BSNL and received commission for such services. The issue to be decided is whether the aforesaid activities are a 'customer care service' on behalf of the client as defined under Section 65(19) (iii), '(vi) and (vii). As per the agreement with the client, M/s BSNL, the appellant were to accept payments of teleph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax in time and did not get the services endorsed in their Registration Certificate the imposition of penalties under Section 76 and 77 are justified. In view of the above I confirm the impugned order passed by the lower authority. The appeal is disposed as rejected. The Orders in other two appeals are identical. The appellants contend that the definition Of business auxiliary service refers to promotion or marketing or sale of goods produced or provided by or belonging to the client or any service incidental or ancillary to any activity specified in this regard in terms of billing issue or collection or recovery of cheques, payments, maintenance of accounts and remittances, inventory management evaluation or development of prospective customer or vendor, publication, public relation services, management or supervision would be included into this category. They contend that italic (iii) of the definition of 'business auxiliary service' refers to any customer care. It is their contention that they do not satisfy the category of promotion or marketing etc., as in italic (i) or italic (iii) pertaining to customer care service for the simple reason that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement is excluded in category italic (v) of the said definition. 5. Learned DR defended the order and pointed out to the following judgments. (1) Bellary Computers v. CCE, Mangalore [2007 (8) S.T.R. 470 (Tri. - Bang)] (2) Corporate Debt Management Services v. CCE ST, Coimbatore [2007 (8) S.T.R. 252(Tri. - Che)] (3) Focussed Corporate Services (I) P Ltd. v. CCE(ST) [2007 (8) S.T.R. 261(Tri. - Che)] (4) Bridgestone Financial Services v. CST, Bangalore [2007 (8) S.T.R. 505 ('Tri. - Bang)] It is his submission that the relationship between the appellant bank and that of their client BSNL is that of customer care service provided on behalf of the client. They have received the commission from BSNL for this activity. Therefore for having provided the services on behalf of their client and receiving commission, they appropriately come within the category of 'customer care service'. He submits that the category under italic (iii) in 'customer care service' provided on behalf of the client should not be read independent of italic (i) but to be read along with italic (vii). It refers to services incidental or ancillary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management supervision and includes services as a commission agent, but does not include any information technology services and any activity that amounts to manufacture: within the meaning of clause (f) of Section 2 of the Central ,Excise Act, 1944 While the definition of banking and other financial services under Section 65 (12) is as follows: Banking and other financial services means (a) the following services provided by a banking company or a financial institution including a non-banking financial company or any other body corporate, namely :- (i) Financial leasing services including equipment leasing and hire-purchase by a body corporate; (ii) Credit card services; (iii) Merchant banking services; (iv) Securities and foreign exchange (forex) broking; (v) Asset management including portfolio management, all forms of fund management, pension fund management, custodial, depository and trust services, but does not include cash management; (vi) Advisory and other auxil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'banking and other financial service' clearly indicate with regard to the asset management and also refers to the asset management in the category of italic (v) of the definition. It also refers to depository and trust services but does not include cash management. The appellants activity is in the category of cash management in as much as the clients are operating their accounts and cash flow of the client is coming to the clients account. Therefore, the activity is that of cash management which is excluded from 'banking and other financial services'. The appellants have made out a case that there are not covered under the category of 'customer case (sic) (care) service' in the main category of 'business auxiliary service' and hence their contention is required to be accepted. Learned representative for the appellants referred to the judgment in the case of Dr. Lal Path Lab Pvt. Ltd. v. CCE, Ludhiana [2006 (4) S.T.R. 527 (Tri.-Del.)] paras 1 to para 12 are reproduced herein below: The appellant, herein run Sample Collection Centres' for specialised laboratories like Dr. Lal Path Labs Pvt. Ltd., New Delhi, M/s. Speciality Ranbaxy Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittance, evaluation of prospective customer and public relation services, arid includes services as a commission agent, but does not include any information technology service. 5. The contention of the learned counsel is that testing starts withdrawal of sample and thus, forms an essential and integral part of testing. It is being submitted that since definition of technical testing and analysis under clause (106) does not include testing or analysis in relation to human beings or animal , the testing service rendered by the appellant is excluded from service tax. Learned counsel for Ludhiana Collection Centre for Dr. Lal Path Labs Pvt. Ltd. has pointed out that the Commissioner has noted in the impugned order that what the appellant does may also be essential part of testing and analysis procedure carried out at parent companys lab., but has incorrectly held that the activity carried out by the appellant amounts to promotion or marketing of service provided by the client M/s. Dr. Lal Path Labs, New Delhi and is covered under Section 65(19)(ii) of the Act as defined therein during the relevant period . The point made is that the finding is contrary to the factual position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived in the test and analysis laboratory. To this, the appellant's reply is that, if not the rest, the serum separation carried out by them, would form part of testing and analysis. 9. With regard to the scope of the levy on testing and analysis service, the contention of the learned SDR is that since testing or analysis in relation to human beings or animal is excluded from the scope of the levy through statutory definition, any testing or analysis in relation to human beings or animal should be treated as outside the purview of levy under that heading and would attract service tax, if that activity fell under any other taxable service under the statute. It is the contention of the learned SDR that since the present appellants carry out advertisements for their clients by keeping their board etc. and sell the services by raising bills, it is clearly a promotion or marketing service and would attract levy accordingly. He would also submit that sub-clause (iv) in the definition of 'business auxiliary service' specifically includes' any incidental or auxiliary support service'. The point emphaised is that since the appellants perform many services incidental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship' of sample drawing and initial processing to testing can be denied. The relationship may be incidental or auxiliary. Whichever way it is, its connection to testing and analysis service is clear, integral and undeniable. Thus, in the factual situation of the case, and the broad scope of the definition, definitely bring the services renders by the collection centres within the scope of technical testing and analysis service. 12. It is well settled that once there is a specific entry for an item in the tax code, the same cannot be taken out of that specific entry and taxed under any other entry. In the present case, revenue is seeking to discard the specific entry and to bring the appellant's services under a very general entry, only because under the specific entry no tax is payable. This approach is contrary to the scheme of the legislation. What is specifically kept out of a levy by the legislature cannot be subjected to tax by the revenue administration under another entry. In terms of the above paras it is clear that cash management service has been netted out from specific category. Therefore, the revenue cannot bring that activity under any other category of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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