C.N.B. Nair, Technical Member. - The appellants herein run "Sample Collection Centres" for specialised laboratories like Dr. Lal Path Labs Pvt. Ltd. New Delhi, M/s. Speciality Ranbaxy Ltd. They maintain the collection centre, draw/collect samples, process the samples to the extent required and forward (through courier service etc.) the samples to the test laboratories. The relationship with the principal is covered by Agreement. The basic terms are that the collection centres would have facilities and trained employees for drawal of blood samples, will carry out the essential processing (serum separation) of blood and forward the samples to the principals through couriers. The collection centres are also responsible for the disposal of waste arising in the process. The test charges are collected by these Centres at the rates stipulated by the test laboratories. The collection centres are paid a percentage (25% etc.) for the service rendered by them.

2. Under the impugned orders, it has been found that the services rendered by these collection centres are "Business Auxiliary Services" which attract service tax. Tax demands remain confirmed on that basis. The orders rejected the contention of the appellants that their services were actually "Technical Testing and Analysis Service" or part of those services and remain excluded from the levy under the relevant heading.

3. We have heard the learned counsel for the appellants and learned SDR and have perused records.

4. As already noted, the dispute is whether the service rendered by the collection centres is Business Auxiliary Service or Technical Test and Analysis services. We may reproduce the relevant taxing provisions before taking up the issue for discussion:

(i)Technical testing and analysis services :

Definitions.-

(106) "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 any immovable property but does not include testing or analysis in relation to human beings or animal.

(ii)Business Auxiliary Service :

Definitions.-

(19) "business auxiliary service" means any service in relation to,-

(i)Promotion or marketing or sale of goods produced or provided by or belonging to the client; or

(ii)Promotion or marketing of service provided by the client; or

(iii)Any customer care service provided on behalf of the client; or

(iv)Any incidental or auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services,

and includes services as a commission agent, but does not include any information technology service.

5. The contention of the learned counsel is that testing states 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 company’s 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 noted. The contention is that a service cannot simultaneously be part of testing and analysis, and "promotion or marketing of service".

6. Learned counsel would also submit that a service that has been specifically listed (technical testing and analysis) under one heading, canno