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7. It is stated that pursuant to the efforts taken by the petitioner by making number of representations to the second respondent, the Ministry of Health issued a memorandum dated 22.5.2013 to the effect that their department has examined the matter in consultation with the National Aids control Organization, Department of Aids Control to recommend that the services rendered by the stem cell banks are part of health care services and hence they may be considered for service tax exemption. Pursuant to the same, the Ministry of Finance, instead of clarifying that the health care services notified under notification no. 25/2012 ST covers the stem cell banks also as per the clear recommendations of the Ministry of Health, made an amendment to the said notification by inserting a new entry 2A below to serial no. 2 Services provided by cord blood Banks by way of preservation of stem cells or any other service in relation to such services vide amending Notification No. 04/2014 dated 17.02.2014 even when the explanation of the terms clinical establishment and Health care services appended to the said notification fully covered their services requiring the grant of the exemption from the payment of service tax. Therefore, according to the petitioner, the amending notification has to be considered as only a clarificatory in nature effective and valid from 01.07.2012 in terms of serial no.2 of the notification No.25/2012 ST, dated 20.6.2012. In other words, though the amendment came into force on and from 17.2.2014, since it is only a clarificatory in nature, the petitioner claims exemption on and from 01.7.2012. Hence, the writ petition, seeking to prohibit the respondents 3 and 4 from collecting service tax from the petitioner company from 01.7.2012 to 16.2.2014.

9. Heard the learned senior counsel appearing for the petitioner and the learned standing counsel appearing for the respondents 1, 3 and 4 and perused the entire records.

10. Mr.Arvind P.Datar, learned senior counsel, would contend that the services provided by the petitioner, i.e. preservation of umbilical blood tissue stem cells would fall within the ambit of health care services and though such services did not form part of "health care services" in the mega exemption Notification No.25/2012-ST dated 20.06.2012, however, pursuant to the efforts taken by the petitioner and the Association of Stem Cell Banks of India with the Ministry of Health & Family Welfare, which issued a memorandum dated 22.5.2013 to the first respondent recommending that the services rendered by the stem cell banks are part of health care services, the said mega exemption notification dated 20.6.2012 was subsequently amended by inserting Entry No.2A which read "Services provided by cord blood banks by way of preservation of stem cells or any other service in relation to such preservation" and thereby the services of the petitioner are recognized as fallen within the ambit of health care services and exempted from the whole of the service tax leviable under Section 66 B of the Finance Act. He contended that the above amendment by inserting Entry No.2A immediately below to Entry 2, i.e. by assigning same number, i.e. 2 adding with an alphabet A in the mega notification, dated 20.6.2012, it has to be treated that such amendment is only a clarificatory in nature and though the amendment is with effect from 17.2.2014, it has to be given with retrospective effect and thereby, exemption for paying service tax for the period from 1.7.2012 to 16.2.2014 has to be extended by the respondents and therefore, the learned senior counsel prayed that that the 3rd and 4th respondents should be restrained by way of writ of prohibition. He would vehemently contend that the amendment by inserting Entry 2A would itself express the intention of the legislature to extend the exemption of service tax in respect of services provided by the Stem Cells Banks and when such intention is plain and unambiguous, it should be presumed that such amendment is only in clarificatory nature and should be given retrospective effect unless the contrary intention is clearly indicated by the legislature. In support of his contentions, the learned senior counsel relied upon the decisions, viz., WPIL Ltd., Ghaziabad versus Commissioner of Central Excise, Meerut, U.P., reported in (2005) 3 SCC 73; Collector of Central Excise, Shillong versus Wood Craft Products Ltd. reported in (1995) 3 SCC 454; Maharaja Book Depot. Versus State of Gujarat reported in AIR 1979 SC 180; and Commissioner of Income Tax I versus Gold Coin Health Food Private Limited reported in (2008) 9 SCC 622.

14. Before going into the merits of the case, it is appropriate to deal with the issue regarding maintainability of the writ petition.

15. On analyzing the entire facts of the case coupled with the averments of the counter and the respective arguments advanced on behalf of either parties, it appears that the issue involved in this writ petition is whether the so-called amendment i.e. Entry No.2A brought into the exemption Notification, dated 20.6.2012 by Notification No.4/2014-ST dated 17.2.2014 to the effect that "Services provided by cord blood banks by way of preservation of stem cells or any other service in relation to such preservation" is only a clarificatory nature and whether it should be given with retrospective effect? Therefore, as rightly contended by the learned senior counsel, the issue question of the determination of rate of duty in terms of Section 35G(1) of the Central Excise Act, 1944 read with Section 83 of the Finance Act does not arise in this writ petition and hence, the writ petition is maintainable. The specific contention of the learned senior counsel for the petitioner is that the above said amendment is only a clarificatory nature and it should be given with retrospective effect and thereby, the respondents 3 and 4 should be prohibited from collecting service tax from 01.7.2012 onwards by way of writ of prohibition. Therefore, since this Court is inclined to delve upon the issue involved in this Writ Petition, whether the so-called amendment i.e. Entry No.2A brought into the exemption Notification, dated 20.6.2012 by Notification No.4/2014-ST dated 17.2.2014 to the effect that "Services provided by cord blood banks by way of preservation of stem cells or any other service in relation to such preservation" is only a clarificatory nature and whether it should be given with retrospective effect?, this Court is of the view that the Writ Petition is maintainable.

24. Reverting to the case on hand, the so-called amendment, admittedly, has been inserted by way of Entry 2A into the exemption Notification, dated 20.6.2012 by Notification No.4/2014-ST dated 17.2.2014 to the effect that "Services provided by cord blood banks by way of preservation of stem cells or any other service in relation to such preservation". Therefore, the intention of the legislature is clear that bringing the services provided by cord blood banks by way of preservation of stem cells under the exemption Notification in order to give exemption of service tax, however, it has not been specifically mentioned that the said amendment should be with effect from the date of exemption Notification. i.e. 20.6.2012, wherein, originally, Entry No.2 has been inserted, giving exemption towards healthcare services by clinical establishment, an authorised medical practitioner or para-medics. Therefore, by virtue of such amendment, it should be construed that the establishments which provides the above said services will get exemption of service tax with effect from the date of amendment, i.e. 17.2.2014 only and they cannot claim it with retrospective effect. The uncontroverted position is that before the amendment came into force, for the services provided by the cord blood banks were leviable and in fact, the petitioner has also paid Rs.1 Crores each towards service tax with effect from 01.07.2012. Therefore, from 17.2.2014 onwards, by virtue of amendment, the said services were exempted from levy of service tax, which by itself explicit that the said amendment is extending remedial effect to the cord blood banks from being levied with service tax. Therefore, having regard to the same, this Court is of the considered view that the so-called amendment is only a remedial nature and it can have prospective effect only. If at all the legislature thought it fit to extend exemption with retrospective effect, it would have certainly expressed by mentioning specifically to the effect that the amendment would be with effect from 20.6.2012. Since the amendment having been brought into force from a particular date, i.e. 17.2.2014, no retrospective operation thereof can be contemplated prior thereto.