whether weighment, sampling, and stuffing service are covered within the scope of technical testing and analysis service?

PJ/CASE LAW/2015-16/2958

Case: COMMISSIONER OF CENTRAL EXCISE, INDORE VersusDEWAS SOYA LTD.

Citation:2015 (40) S.T.R. 589 (Tri. - Del.)

Brief Fact:Revenue has filed appeals against Order-in-Appeal dated 24-2-2009 in terms of which Revenue’s appeals before Commissioner (Appeals) seeking recovery of the refund amount of Rs. 32,779/-, Rs. 1,12,604/- and Rs. 12,269/- of Service tax paid under technical testing and analysis service [Section [65(105)(zzh) of Finance Act, 1994] in respect of goods exported was sought to be recovered on the ground that the service involved was weighment, sampling and stuffing which was not covered within the definition of technical testing and analysis service given in Section 65(106) ibid. The Commissioner (Appeals) discussed the nature of service provided in the name of weighment, sampling and stuffing service and came to a clear finding that it was covered within the ambit of technical testing and analysis service and thus dismissed the Revenue’s appeal before him.

Appellant contention: Revenue has contended that weighment, sampling and stuffing of containers are not covered within the scope of technical testing and analysis service. Stuffing of containers involved supervision of wagon loading/unloading which is not in the nature of technical testing and analysis service. Similarly sampling and weighing do not fall under the said service.

Respondent contention:In the cross objections, respondent referred to the definition of technical testing and analysis service and the scope of the words testing and analysis and added that the service provider (testing agencies) have submitted reports containing the particulars of the test carried out.

Reasoning of Judgment:Tribunal has considered the contentions of both sides. As per definition of technical testing and analysis service given in Section 65(106) ibid, technical testing and analysis means “any service in relation to physical, chemical, biological or any other scientific testing or analysis of goods or material or information technology software or any immovable property, but does not include any testing or analysis service provided in relation to human beings or animals.” Physical testing and analysis would clearly include weighment and sampling also is based on certain physical or chemical characteristics. It is also seen that in this case stuffing required specific conditions/arrangements like putting of silica gel packs together with craft paper which was technical in nature and thus was a specialised job. As per Section 65(108) ibid technical inspection and certification means “any inspection or examination of goods or process or material or any immovable property to certify that such goods or process or material or immovable property qualifies or maintains the specified standards, including function ability or utility or quality or any other character or parameters but does not include any service in relation to inspection of pollution levels.” Testing involves a critical examination, observation or evaluation and analysis involves examination of a complex, its element and their relation, the identification or separation of ingredient of a substance. It is not in dispute that the service was rendered by technical agencies engaged in providing service in relation to technical testing and analysis thus satisfying the definition given in Section 65(107) ibid. In the present case, for determination of the specifications of protein, fat moisture etc. samples were required to be drawn mixed and then analysed. Indeed, we find that the service providers issued proper certificates certifying weighing, packing and stuffing and the specification of protein, fat, moisture, etc.
In view of the analysis above, we are of the view that refund of the aforesaid amounts was correctly sanctioned as per the provisions of Notification No. 41/2007-S.T., dated 6-10-2007 as amended. Thus, the impugned order does not suffer from any infirmity. Revenue’s appeals are therefore dismissed. Cross-objections also stand disposed of.

Decision: Appeal dismissed.

Comment:The gist of the case is that Physical testing and analysis would clearly include weighment and sampling also is based on certain physical or chemical characteristics. Stuffing required specific conditions/arrangements like putting of silica gel packs together with craft paper which was technical in nature. Thus the tribunal has rightly dismissed the appeal filed by the revenue.

Prepared By:Anash kachaliya

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PJ/CASE LAW/2015-16/2958

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