Specific entries in the tax code cannot be taxed under any other entry, and the interpretation of statutory provisions is crucial in determining the applicability of tax categories.

M.M.Kumar, J.

1. This appeal filed by the revenue under Section 35G of the Central Excise Act, 1944 challenges order dated 30-8-2006 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 #24;Business Auxiliary Service#25; 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 :-

#28; Whether the Hon#25;ble Tribunal is #28;correct in holding that the services rendered by the respondents do not fall under any category specified in the definition of #24;Business Auxiliary Service#25; and is within the scope of #24;Technical Test and Analysis Services#25; and whether service tax is payable on such services. #29;

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% of commission. Sh. Vaneet Grover, proprietor of Centre at Ludhiana, in his statement dated 26-5-2004 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 Franchisee 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% of amount was transferred to the principal lab at Delhi by the assessee-respondent through demand drafts.

3. On the basis of the preliminary investigation held, another show cause notice dated 6-10-2004 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 75-A, 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-III, Ludhiana passed an order on 30-11-2004 confirming the demand of service tax by placing reliance on Section 73(a) by invoking the extended period of 5 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 75-A of the Act to get itself registered with the Central Excise Department under Section 77 of Central Excise Act, was imposed.

4. 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.

5. On further appeal filed by the assessee-respondent, the Tribunal came to the conclusion that the activities of the assessee-respondent were not covered by the provisions of Section 65 (19) (ii) of the Act. The view of the Tribunal is discernible from paras 11 to 14 of its order, which reads as under.-

#28;11. There is no disp