Is seafood an animal? - Testing of seafood by visual examination -whether liable to ST under Technical testing and Analysis service -CESTAT orders pre-deposit.
THE applicants had got themselves registered as a service tax assessee under the category of ‘Technical Inspection and Certification Service' and paid service tax. Subsequently, they filed a refund claim on the ground that ‘ Technical testing and analysis service ' in relation to human beings or animals is exempted.
The adjudicating authority sanctioned the refund.
This order was reviewed by the Revenue and the Commissioner (Appeals) allowed the Revenue appeal.
In the meantime, a SCN was also issued for recovery of the refund sanctioned. This demand was confirmed by the adjudicating authority and the Commissioner(A) upheld this order.
So, the applicant is before the CESTAT.
It is submitted that the ‘Technical testing and analysis service' is in relation to animals, namely seafood, and since the definition excludes any testing or analysis service provided in relation to human beings or animals, they are not liable to pay any service tax. It is further submitted that the seafood regarding which the applicants are providing the service is exported and the applicants are receiving fee in American Dollars. In these circumstances, the demand is not sustainable.
The Revenue representative submitted that the applicants were only undertaking visual examination of the seafood and were not providing any certification in respect of the testing etc. It is further submitted that the technical testing and analysis service is exempted in respect of live animals for detection and cure of disease and the same is not applicable in respect of seafood.
The Bench observed -
"5. After taking into account the facts and circumstances of the case, the applicants are not providing any certification in respect of the testing and the testing is done by visual examination. Therefore, prima facie we find that the applicants have not made out a case for total waiver of dues. However, keeping in view the facts and circumstances of the case, the applicants are directed to deposit Rs.75,000/- (Rupees seventy-five thousand only) within a period of eight weeks…."