M.M. Kumar, J. - (1.) THIS appeal filed by the Revenue under Section 35G of the Central Excise Act, 1944 challenges order dated August 30, 2006 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (P 3) by holding that the services rendered by the assessee -respondent do not fall in any of the category specified in the definition of "business auxiliary service" as per Sub -section (19) of Section 65 of the Finance Act, 1994. The argument raised by the Revenue is that the activity carried out by the assessee -respondent amounted to promotion or marketing of service provided by its principal M/s Dr. Lal Path Lab, New Delhi has been rejected by the Tribunal. The Revenue has claimed that the following substantial question of law would arise for the determination of this Court: Whether the honourable Tribunal is correct in holding that the services rendered by the respondents do not fall under any category specified in the definition of business auxiliary service' and is within the scope of 'technical test and analysis services' and whether service tax is payable on such services.
(2.) FACTS in brief are that there is a lab known as M/s. Dr. Lal Path Lab (P) Ltd., Collection Centre at Ludhiana, which is engaged in the collection of blood, urine and stool samples on behalf of its principal M/s. Dr. Lal Path Lab (P) Ltd., New Delhi, for conducting biological tests. The assessee -respondent based at Ludhiana are given 25 per cent of commission. Sh. Vaneet Grover, proprietor of centre at Ludhiana, in his statement dated May 26, 2004 recorded by the Superintendent (Anti Evasion) at the time of investigation has stated that he is the sole proprietor of the assessee -firm, which is franchise of the company based at Delhi in pursuance of an agreement between them. According to the statement made, the samples so drawn are collected by the collection centre and then sent by them to the company at New Delhi through a courier. Out of the total collection, 75 per cent of amount was transferred to the principal lab at Delhi by the asses -see -respondent through demand drafts. On the basis of the preliminary investigation held, another show cause notice dated October 6, 2004 was issued to the assessee -respondent as to why service tax amounting to Rs. 49,251 involved in taxable value amounting to Rs. 6,15,631 should not be demanded from them under Section 73(b) of the Finance Act, 1994. The show cause notice also contemplated as to why penalty should not be imposed upon them under sections 75A, 76 and 77 of the Act for failure to get itself registered and for non -payment of service tax and also for not filing ST 3 return. The show cause notice was contested and after detailed discussion, the Assistant Commissioner, Central Excise, Division -Ill, Ludhiana passed an order on November 30, 2004 confirming the demand of service tax by placing reliance on Section 73(a) by invoking the extended period of five years. He also raised demand of interest from the assessee -respondent under Section 75 of the Act and imposed penalty equal to the amount of tax payable under Section 76. Therefore, penalty of Rs. 1,000 for contravening provision of Section 75A of the Act to get itself registered with the Central Excise Department under Section 77 of Central Excise Act, was imposed.
(3.) ON appeal before the Commissioner, the demand of tax was upheld being covered by Section 65(19)(ii) of the Act. However, the interest demanded was upheld as the payment of service tax was delayed. However, he deleted the penalties imposed under sections 76 and 75A of the Act, holding that the element of mens rea was totally missing.;