1. LAW GOVERNING SERVICE TAX

1.1 Chapter V of the Finance Act, 1994 (Sections 64 to 96) and Chapter VA of the Finance Act, 1994 (Sections 96A to 96I) both the Chapters together are hereinafter referred to as the “Act”, as amended from time to time, provide for the levy of service tax and constitute the law governing service tax. The Government has also notified certain rules which are listed in Annexure 1.

1.2 The Act is administered by the Excise department. The rate of service tax is as follows –

1. Up to 31st May, 2015 – 12.36% (including education cess1 and higher education cess2)

2. w.e.f. 1.6.2015 – 14%

The rate of service tax will go up by another 2% if and when the Central Government exercises its power to introduce a ‘Swachh Bharat Cess’ of 2% on all or any of the taxable service.

The Finance Act, 2012 w.e.f. 1.7.2012 made a paradigm shift in the law governing service tax. Taxation of services is now based on what is popularly known as ‘Negative List of Services’’. This referencer contains the provisions summarising the law w.e.f. 1.7.2012.

2. SITUS OF TAXATION

2.1 By section 64(1), the Act extends to the whole of India except the State of Jammu and Kashmir, and by section 64(3), the levy applies to “taxable services provided”.

2.2 The term “India” has been defined in the Act to mean –

1. The territory of the Union as per clauses (2) & (3) of Article 1 of the Constitution i.e. the State territories and the Union territories;

2. The ‘territorial waters’, continental shelf, exclusive economic zones and other maritime zones as defined in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 [i.e. up to 200 nautical miles];

3. The sea bed and the sub-soil underlying the territorial waters [up to 12 nautical miles];

4. The airspace above its territory and territorial waters [up to 12 nautical miles]; and

5. Installations, structures and vessels located in the continental shelf and exclusive economic zone of India for the purposes of prospecting or extraction or production of mineral, oil and natural gas and supply thereof.

3. CHARGE OF SERVICE TAX

3.1 Charging Section

3.1.1 The charging section 66B provides that there shall be levied a tax @14% on ‘the value of all services other than those specified in the negative list provided or agreed to be provided in the taxable territory, by one person to another…’.Thus, the features of the charging section are -

1. The charge is on the ‘service’ provide or agreed to provided by one person to another;

2. The service provided is not specified in the ‘negative list’;

3. The service is provided in the ‘taxable territory’;

4. The rate of tax is 14% on value of all services.

The term ‘service’ and ‘negative list’ are analysed below.

3.2 What is Service?

Definition [Section 65B(44)]

3.2.1 ‘Service’ means –

• Any activity

• For consideration

• Carried out by a person for another

• And includes a ‘declared service’.

• But excludes ‘specified transactions’.

General

3.2.2 The term ‘activity’ is a term of very wide connotation and could be active or passive and would also include forbearance to act.

3.2.3 ‘Consideration’ means everything received (both monetary and non-monetary) in return for provision of service.

3.2.4 A service must be provided by one person to another – a requirement of two distinct entities. A service provided by a person to self is not taxable e.g. Inter-branch transactions where branches are located in India. There are two statutory exceptions to this proposition:

1. An establishment (e.g. branch, agency or representative office) of a person located in the taxable territory and another establishment of such person located in a non-taxable territory will be considered as separate persons. Example, a transaction between the Indian branch of a company and its overseas head office would be considered as ‘service’.

2. An unincorporated association or body of persons and the members thereof are also treated as ‘distinct persons’. Thus, the intention is to pierce the doctrine of mutuality and tax transactions between members and a club of a ‘members’ club’.

Specified transactions not regarded as a service

3.2.5 The following transactions would not be regarded as service:

• Any activity that constitutes only a transfer of title in

1. Goods or

2. Immovable property by way of sale, gift or in any other manner;

• Any transfer, delivery or supply of goods which is deemed to be a sale within Article 366(29A) of the Constitution, namely,:-

1. Sale of goods otherwise than in pursuance of a contract [Compulsory Sale].

2. Transfer of property in goods involved in the execution of a “works contract”.

3. Delivery of goods on hire purchase or payment by instalments

4. Transfer of the right to use goods (where the effective control and possession is transferred).

5. Supply of goods by unincorporated association to a member thereof.

6. Supply of food or drink by way, of or as part of, any service or in any other manner (catering contracts)

• A transaction only in

1. Money or

2. Actionable claim;

A transaction in money or actionable claim shall not include –

(A) Any activity relating to –

1. The use of money (e.g. lending) ; or

2. Conversion of money, by cash or any other mode, from one form, currency or denomination to another form, currency or denomination (e.g. Conversion of Indian currency to foreign currency and vice versa) for which a separate consideration is charged.

(B) An activity in relation to facilitation of a transaction in money or actionable claim carried out for consideration including the activity carried out by:

1. A lottery distributor or selling agent in relation to promotion, marketing, organising, selling of lottery or facilitating in organising lottery of any kind, in any other manner.

2. A foreman of chit fund for conducting or organising a chit in any manner.

• Any service provided by an employee to an employer in the course of the employment; and

• Fees payable to a court or a Tribunal set up under a law for the time being in force.

Certain transactions under Section 66E specifically deemed to be a ‘service’ - termed as ‘Declared services’

3.2.6 Certain transactions specified in section 66E would be considered to be a service – termed as ‘declared service’. A list of such declared services is given in Annexure 2.

Negative List of Services – Section 66D – Service tax not applicable

3.2.7 Certain services specified in section 66D are termed as ‘negative list of services’ and service tax is not applicable on such services. The negative list of services is given in Annexure 3.

3.3 The service must be provided in the ‘Taxable Territory’ – Place of provision of service

3.3.1 Section 66B clearly provides that the taxable event i.e. the ‘service’ must happen in the ‘taxable territory’. The term ‘taxable territory’ has been defined in section 65B(52) as ‘the territory to which the provisions of this Chapter apply’. By section 64(1) Chapter V of the Finance Act, 1994 (i.e. the law governing service tax) extends to the whole of ‘India’ except the State of Jammu & Kashmir.

3.3.2 The Central Government has been empowered u/s. 66C to enact rules to determine when would the service be considered as provided in the taxable territory i.e. rules to determine the place of provision of service. The Place of Provision of Services Rules, 2012 [“PoP Rules”] is notified vide notification no. 28/2012-ST dated 20.6.2012 which is effective from 1.7.2012. Prior to 1.7.2012, there were separate rules for determining ‘import of services’ [Taxation of Services (Provided from outside and received in India) Rules, 2006] and ‘export of services’ [Export of Services Rules, 2005] but no rules to determine the place of provision of services. However, w.e.f. 1.7.2012, the PoP Rules has been enacted to determine when the services would be considered as provided in the taxable territory and when it would not. Thus, the present PoP Rules is neutral to Imports and Exports. With the introduction of the PoP Rules, the import and export rules3 have been rescinded. The only requirement would be whether a service is provided in the taxable territory (pursuant to place of provision of service rules). If yes – liable, if no – not liable. The text of the Place of Provision of the Services Rules, 2012 is given in Annexure 4.

3.3.3 The Place of Provision of Service Rules is basically to determine the place of provision of a service. The essence of the rules is that service is to be taxed in the jurisdiction of the place of consumption of service. The basic rule is that the place of provision of service shall be the location of the service receiver. However, exceptions have been provided in case of performance based services, immovable property based services, certain specified services and transportation service. The POP rules maybe summed up in a table as under:

3.3.4 Further any service provided or agreed to be provided shall be treated as export of service when all the following conditions are satisfied –

1. Service provider is located in taxable territory;

2. Service recipient is located outside India;

3. The service is not a service specified in the negative list;

4. The place of provision of service is outside India;

5. Payment of service is received in convertible Foreign Exchange; and

6. Service provider and service recipient are not merely establishments of same persons.

4. TIME OF SUPPLY OF SERVICE (POINT OF TAXATION RULES, 2011)

4.1 Preamble

4.1.1 The Point of Taxation Rules, 2011 [“PoT Rules”] set out the criteria to decide the point of time when a service is deemed to have been provided for the purpose of collection of service tax and determination of rate of service tax. The salient features of the PoT Rules are as under.

4.2 Basic general rule – Earlier of (i) date of issue of invoice / date of completion of provision of service; or (ii) date of receipt of payment

4.2.1 The general rule for determining the time of provision of service will be as follows:

A. Where the invoice is issued within 30/45 days (as the case maybe refer para 9.4.5 of Chapter 9 hereinafter) of the date of completion of provision of services the earliest of the following dates:

1. Date of issue of invoice

2. Date of receipt of payment

B. Where the invoice is not issued within 30/45 days (as the case maybe refer para 9.4.5 of Chapter 9 hereinafter) of the date of completion of provision of services the earliest of the following dates:

1. Date of completion of provision of services

2. Date of receipt of payment.

C. In respect of advances received towards provision of taxable service – the date of receipt of such advance.

4.2.2 Thus it is important that the invoice is issued within 30/45 days (as the case maybe refer para 9.4.5 of Chapter 9 hereinafter) from the date of completion of service failing which the due date may be advanced resulting in interest and penalty. In any case, Rule 4A of the Service Tax Rules, 1994 mandates the issue of invoice within 30/45 days (as the case maybe refer para 9.4.5 of Chapter 9 hereinafter) of completion of provision of service.

4.2.3 However, in case of ‘continuous supply of service’ the above rule (para 4.2.1) would be applicable subject to the following modifications –

1. Where in terms of the contract the provision of the whole or part of the service is determined periodically on the completion of an event; and

2. Such event obligates payment by the service receiver, the date of completion of each such event shall be the date of completion of provision of services.

4.2.4 A ‘continuous supply of service’ means–

1. Any service provided or agreed to be provided continuously or on recurrent basis by a service provider under a contract for a period more than 3 months with the obligation for payment periodically or from time to time; or

2. Such services which the Central Government prescribes by a notification to be in the nature of continuous supply of services.

4.2.5 Notification No. 28/2011–ST dated 1.4.2011 issued by the Central Government has prescribed following services to be in the nature of continuous supply of services.

1. Telecommunication service

2. Service portion in execution of Works contract

4.2.6 The above is the basic rule to decide at what point of time a service is deemed to be provided. The exceptions to the above rule is given in subsequent rules which deal with the following :

1. Determination of PoT in case of excess payments received up to ₹ 1,000/-

2. Determination of point of taxation in case of change in the effective rate of tax

3. Payment of tax in case of new services

4. Determination of point of taxation in payment of tax under reverse charge

5. Determination of point of taxation in case of associated enterprises

6. Determination of point of taxation in case of copyrights, etc.

4.3 PoT in case of excess payments received up to ₹ 1,000/-

4.3.1 In case where service provider receives excess payments not exceeding ₹ 1,000/- in respect of an invoice, the point of taxation for such excess amount at the service provider’s option, be the date of issue of invoice or date of completion of provision of service if invoice is not issued within prescribed time.

4.4 Determination of point of taxation in case of change in the effective rate of tax

4.4.1 Rule 4 of the POT Rules provides when a service is deemed to have been provided in cases where there is a ‘change of effective rate of tax’ which would also include change in that portion of value on which tax is payable in terms of an exemption notification or rules made in this regard. The Board Circular 341/34/2010-TRU, dated 31.3.2011 clarifies as follows:

“change in the effective rate of tax shall also include change in that portion of value on which tax is payable in terms of an exemption notification or rules made in this regard. It may be noted that an exemption has been granted in value for various services vide Notification No. 1/2006-ST dated 01.03.2006 which has the effect of payment of tax only on a part of the value. Similarly either the values or the rates at which tax is payable are provided under rule 6 (7, 7A, 7B or 7C) of the Service Tax Rules, 1994 as well as the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. Thus, whenever these values or the composition rates are changed, it would have the same effect as the change in the rate of duty. It is hereby further clarified that the rate of tax shall also include any other notification which is issued, rescinded or amended and has the effect of altering the taxability of any service.”

4.4.2 In such cases , the point of taxation is determined as under.

NOTES :

1. The words ‘Before / After’ in the table denote ‘Before / After’ the change in the effective rate of tax.

2. In the normal course the date of payment shall be the earlier of the date of entry in the books of account or date of credit in bank account. However, when there is change in effective rate of tax or a new levy between the said two dates, the date of payment shall be the date of actual credit in the bank account, if the amount is credited in the bank more than four working days after the date of such change.

4.5 Payment of tax in cases of new services

4.5.1 Rule 5 of the POT Rules provide that in the case of new services brought into the tax net, no tax shall be payable –

1. To the extent the invoice has been issued and the payment received before such service became taxable;

2. If the payment has been received before the service becomes taxable and invoice has been issued within 14 days of the date when the service is taxed for the first time.

4.6 Point of taxation in case of payment of tax under reverse charge would be date of payment

4.6.1 The point of taxation in case of payment of tax under reverse charge shall be the date on which payment is made. However, where the payment is not made to the service provider within three months from the invoice date, the POT would be the date immediately following the said period of three months.

4.7 Determination of point of taxation in case of associated enterprises

4.7.1 In case where –

1. The transaction is with an associated enterprise as defined in section 92A of the Income-tax Act, 1961; and

2. The service provider is located outside India the point of taxation shall be the earliest of the following dates –

1. Date on which debit is made in the books of account of the service recipient; or

2. Date on which payment has been made.

4.8 Determination of point of taxation in case of copyrights, etc.

4.8.1 In respect of royalty payments received in respect of copyrights, trademarks, designs or patents, where the whole amount of the consideration for the provision of service is not ascertainable at the time when the service was performed and subsequently the use or the benefit of these services by a person other than the supplier gives rise to any payment of consideration, the service shall be treated as having been provided –

1. Each time a payment in respect of such use or benefit is received by the service provider; or

2. Each time the service provider issues an invoice, whichever is earlier.

4.9 Determination of PoT based on best judgment

4.9.1 In cases where PoT is not determinable due to non- availability of date of invoice or date of payment, the Central Excise Officer may determine the PoT on best judgment basis subject to giving the assessee an opportunity of being heard.

5. PROVISIONS FOR VALUATION OF TAXABLE SERVICES

5.1 Introduction

5.1.1 Section 67 deals with valuation of taxable services. It provides for an elaborate method of computing the value. The significant features are as follows:

1. Where the “consideration” for provision of the service is in money, the gross amount charged by the service provider for such services provided by him shall be the value of taxable service;

2. Where the “consideration” for provision of the service is not wholly or partly in money, then the value of taxable service shall be such amount in money as with the addition of service tax charged, be equivalent to the consideration;

3. Where the “consideration” for provision of the service is not ascertainable the value of taxable service shall be determined in a manner laid down by the Rules which the Central Government has notified.

“Consideration” has been defined4 as to include–

1. Any amount payable for the taxable services provided;

2. Any reimbursable expenditure or cost incurred and charged, in the course of providing taxable service, except in such circumstances and subject to the conditions, as may be prescribed;

N.B: The circumstances and conditions have not been prescribed as yet. The Finance Act, 2015 has expanded the definition of consideration to include reimbursable expenditure/cost which was earlier covered in Rule 5 of Valuation Rules [see para 5.4]

3. Any amount retained by the lottery distributor selling agent from gross sale amount of lottery ticket in addition to the fee or commission, or discount received, i.e. the difference in the face value of lottery ticket and the price at which the distributor or selling agent gets such ticket’. Thus margin/discount of lottery distributor/selling agent would be consideration for his service.

5.1.2 Pursuant to above the Central Government has notified the Service Tax (Determination of Value) Rules, 2006 (“Valuation Rules”) vide Notification No.12/2006-service tax, dated April 19, 2006. The valuation rules are explained as under.

5.2 Determination of value where such value is not ascertainable

5.2.1 Where the value of taxable service is not ascertainable, the value of taxable service shall be determined by the application of the following rules.

1. Rule 1: The value shall be equivalent to the gross amount charged by the service provider to provide similar services to any other person in the ordinary course of trade and the gross amount charged is the sole consideration.

2. Rule 2: Where the value cannot be determined in accordance with rule 1 above, value shall be the equivalent money value of the consideration as determined by the service provider. Such value however, shall not be less than the cost of provision of such taxable service.

5.3 Power of Central Excise Officer to question the valuation

5.3.1 The Central Excise Officer has the power to satisfy himself as to the accuracy of any information furnished or document presented for valuation. Where the Central Excise Officer is satisfied that the value determined by the service provider is not in accordance with the provisions of the Act or the Valuation Rules, the Central Excise Officer may proceed to determine the value of such taxable service after issuing a notice and giving a hearing to the assessee. The Circular No F. No. B1/4/2006-TRU dated 19th April, 2006 issued by Ministry of Finance has instructed the department to use extreme care and caution before exercising their powers under this rule. It clarifies :

“4.1.6 It is expected that the department should use this provision with extreme care and caution. Such verification should be undertaken only after the written instructions from the Divisional AC/DC. After verification of the records, if the department is of the view that the value so determined and adopted for payment of service tax warrants revision, the issue should be decided after issue of show cause notice and observing the prescribed procedures. Before issuing any show cause notice on matters relating to valuation, concurrence of Commissioner should be obtained.”

5.4 Reimbursement of expenditure

5.4.1 Recovery of reimbursements would also be included in the taxable value unless the recovery by the service provider is as a “pure agent” of the client and all the following conditions are satisfied :

• The service provider acts as a pure agent of the recipient of service when he makes payment to third party for the goods or services procured;

• The recipient of service receives and uses the goods or services so procured by the service provider in his capacity as pure agent of the recipient of service;

• The recipient of service is liable to make payment to the third party;

• The recipient of service authorises the service provider to make payment on his behalf;

• The recipient of service knows that the goods and services for which payment has been made by the service provider shall be provided by the third party;

• The payment made by the service provider on behalf of the recipient of service has been separately indicated in the invoice issued by the service provider to the recipient of service;

• the service provider recovers from the recipient of service only such amount as has been paid by him to the third party; and

• The goods or services procured by the service provider from the third party as a pure agent of the recipient of service are in addition to the services he provides on his own account.

5.4.2 A “pure agent” means a person who –

• Enters into a contractual agreement with the recipient of service to act as his pure agent to incur expenditure or costs in the course of providing taxable service;

• Neither intends to hold nor holds any title to the goods or services so procured or provided as pure agent of the recipient of service;

• Does not use such goods or services so procured; and

• Receives only the actual amount incurred to procure such goods or services.

5.5 Specific inclusions and exclusions

5.5.1 Rule 6 of the Valuation Rules provides for inclusions and exclusions in case of certain services.

Inclusions

1. The aggregate of commission or brokerage charged by a broker on the sale or purchase of securities including the commission or brokerage paid by the stock-broker to any sub-broker;

2. The adjustments made by the telegraph authority from any deposits made by the subscriber at the time of application for telephone connection or pager or facsimile or telegraph or telex or for leased circuit;

3. The amount of premium charged by the insurer from the policy holder;

4. The commission received by the air travel agent from the airline;

5. The commission, fee or any other sum received by an actuary, or intermediary or insurance intermediary or insurance agent from the insurer;

6. The reimbursement received by the authorised service station from manufacturer for carrying out any service of any motor car, light motor vehicle or two wheeled motor vehicle manufactured by such manufacturer.

7. The commission or any amount received by the rail travel agent from the Railways or the customer.

8. The remuneration or commission, by whatever name called, paid to such agent by the client engaging such agent for the services provided by a clearing and forwarding agent to a client rendering services of clearing and forwarding operations in any manner;

9. The commission, fee or any other sum, by whatever name called, paid to such agent by the insurer appointing such agent in relation to insurance auxiliary services provided by an insurance agent, and

10. Amount realised as demurrage or by any other name whatever called for the provision of a service beyond the period originally contracted or in any other manner relatable to the provision of service

Exclusions

1. Initial deposit made by the subscriber at the time of application for telephone connection or pager or facsimile or telegraph or telex or for leased circuit;

2. The airfare collected by air travel agent in respect of service provided by him;

3. The rail fare collected by rail travel agent in respect of service provided by him.

4. Interest on delayed payment of any consideration for the provision of services or sale of property, whether movable or immovable.

5. The taxes levied by any Government on any passenger travelling by air, if shown separately on the ticket, or the invoice for such ticket, issued to the passenger.

6. Accidental damages due to unforeseen actions not relatable to the provision of service; and

7. Subsidies and grants disbursed by the Government, not directly affecting the value of service.

5.6 Other provisions

Valuation of taxable services to include advance payments

5.6.1 Payments received before, during or after the provision of taxable service would form part of gross amount charged. Thus, the payments received even before the provision of taxable service would form part of the gross amount for charging service tax. Further the charging section viz., section 66B of the Act also covers “services agreed to be provided”. Thus, service tax would be payable even on advances received.

Computation of service tax where bill is inclusive of service tax.

5.6.2 The law provides that in cases where the total amount charged is inclusive of service tax the value of taxable service is to be computed by the following methodology –

where, R is the rate of tax.

Thus, the amount of service tax would be:

where, R is the rate of tax.

5.7 Valuation of service portion in execution of Works Contract

General

5.7.1 Service tax is leviable on the services portion in the execution of a “works contract”. “Works contract” means –

1. A contract wherein a transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods; and

2. Such contract is for the purpose of –

1. Construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of any movable or immovable property; or

2. Carrying out any other similar activity or a part thereof in relation to such property.

Thus, “Works Contract” would also include construction, repairs, maintenance etc. of ‘movable property’. Thus a contract to construct a ship or aircraft or a bus-body or railway-coach etc. or repair and maintenance of air-conditioners, computers etc. would be considered as “works contracts” for the purpose of service tax. This may have repercussion on the valuation.

5.7.2 However construction, erection, commissioning, installation, completion, fitting out repair, maintenance, renovation or alteration of –

1. Road, bridge, tunnel or terminal for road transportation for use by general public;

2. Railways including monorail or metro;

3. Canal, dam or other irrigation works for the Government or local authority.

is exempt from payment of service tax.

Methods of Valuation

5.7.3 Service tax is required to be paid on the gross amount charged for the works contract less the value of transfer of property in goods involved in the execution of the said works contract. The gross amount charged would, however, not include VAT or sales tax paid on transfer of property in goods involved in the execution of the said works contract. Thus, two components are required to be ascertained :

1. The gross amount charged for the works contract; and

2. The value of goods involved in the execution of works contracts;

The value of goods would be deducted from the gross amount charged to arrive at the value of the services portion in the works contract on which service tax at the applicable rates would be payable.

5.7.4 For determining the value of goods involved in the execution of a works contract where VAT / sales tax has been paid on the actual value of transfer of property in goods then such value shall be adopted.

5.7.5 It has been provided that the value of works contract service shall include, –

1. Labour charges for execution of the works;

2. Amount paid to a sub-contractor for labour and services;

3. Charges for planning, designing and architect’s fees;

4. Charges for obtaining on hire or otherwise, machinery and tools used for the execution of the works contract;

5. Cost of consumables such as water, electricity, fuel, used in the execution of the works contract;

6. Cost of establishment of the contractor relatable to supply of labour and services;

7. Other similar expenses relatable to supply of labour and services; and

8. Profit earned by the service provider relatable to supply of labour and services.

Thus, the above would have to be included in determining the value of works contract service.

5.7.6 However, if the value of services under the method mentioned in para 5.7.3 has not been determined the value of services shall be determined as under:

5.7.7 The following points may be noted:

1. Original Works means all new construction, all types of additions and alterations to abandoned or damaged structures to make them workable, and erection/ commissioning/ installation of plant, machinery or equipment or structures whether pre-fabricated/ otherwise

2. Total amount means gross amount charged and fair market value of all goods and services supplied in relation to execution of works contract (whether or not under the same contract or a separate contract) after deducting –

(1) Amount charged for such goods/services by the service recipient;

(2) Value added tax if any levied thereon It may be noted that fair market value of goods/ services supplied may be determined according to the generally accepted accounting principles.

(iii) Cenvat Credit on inputs would not be available but Cenvat credit on capital goods and input services would be available.

5.8 Telecommunication Services – valuation of recharge coupons and prepaid cards

5.8.1 In case of telecommunication services the value of taxable services shall be the gross amount paid by the subscriber to whom the telecommunication services have been provided. Thus, assessees engaged in providing telecommunication services, would have to pay service tax on the retail price of the recharge coupons or prepaid cards and not on the actual money received by them from the distributor or intermediary. Prima facie it appears that telecommunication service providers would be forced to pay service tax even on the amounts not received by them.

5.8.2 The Board Circular No. 334/3/2011-TRU dated 28.2.2011 had explained the purpose of the above provision as follows:

“9.2 An explanation has been added after rule 5(1) of the Service Tax (Determination of Value) Rules, 2006 clarifying that for the purpose of telecommunication service [Section 65(105)(zzzx)] the value shall be the gross amount paid by the person to whom the service is provided by the telegraph authority. Thus in case of service provided by way of recharge coupons or prepaid cards or the like, the value shall be the gross amount charged from the subscriber or the ultimate user of the service and not the amount paid by the distributor or any such intermediary to the telegraph authority. This amendment shall come into force on 01.03.2011.”

5.9 Money Changing Services – Valuation and presumptive rate option

5.9.1 For an assessee with regard to payment of tax on transaction of “purchase and sale of foreign currency” the following options are available.

5.9.2 Alternative 1 : Payment of service tax as per the value determined under Valuation Rules

• The value of the money changing service shall be determined as follows:

1. The difference between the buying rate or the selling rate, as the case may be, and the RBI reference rate for that currency ‘at that time’ multiplied by units of currency exchanged;

2. If RBI reference rate is not available the value shall be 1% of the value of money exchanged in Indian rupees;

3. When both the currencies are not Indian rupees, 1% of the lesser of the amounts receivable if the two currencies are converted into Indian Rupee at RBI reference rate.

• Thus, the assessee can pay service tax at the full rate i.e. 14% on the value as determined above.

5.9.3 Alternative 2 : Payment of service tax as per composition scheme under Service Tax Rules

• Rule 6(7B) of Service Tax Rules, 1994 prescribes the rate of composition as under:

• The above option once exercised at any time during the financial year cannot be withdrawn during the remaining part of that financial year.

5.10 Catering contracts

5.10.1 The value of service portion in an activity wherein goods being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as part of the activity at a restaurant or as outdoor catering the value of taxable services shall be determined as follows.

5.10.2 Total amount means gross amount charged and fair market value of all goods and services supplied after deducting

1. Amount charged for such goods/services

2. Value added tax if any levied thereon

It may be noted that fair market value of goods/ services supplied may be determined according to the generally accepted accounting principles. Further cenvat credit on inputs (Chapters 1 to 22 of Central Excise Tariff Act, 1985) would not be allowed.

5.11 Composition schemes for life insurance business

5.12 Composition schemes for air travel agents

“Basic Fare” means that part of the air fare on which commission is normally paid to the air travel agent by the airline.

5.13 Composition schemes for the selling agent of lottery tickets

In case of online lottery, aggregate face value of the tickets sold shall be taken instead of aggregate face value of lottery tickets printed.

6. TAXABLE PERSON & REVERSE CHARGE

6.1 Section 68 of the Act read with rule 2(1)(d) of the Service Tax Rules, 1994 together determine the ‘taxable person’ i.e. the ‘person liable to pay service tax’. In all cases, except in case of certain notified services, the service provider is liable to pay service tax. However, under section 68(2) the Central Government can notify –

1. The services where a person other than a service provider (e.g. the service recipient) can be made liable to pay service tax; and

2. The extent to which service tax would be payable by such person and the service provider.

The Central Government has issued Notification No. 30/2012-ST dated 20.06.2012 under section 68(2) of the Act which is effective from 1.7.2012

6.2 The ‘taxable person’ and the extent to which tax would be payable by him is indicated in the table below:

Notes:

1. The person liable to pay service tax other than the service provider will be the service recipient except in case of Sr. No. 10 where it would be

1. Aggregator of service if it has a physical presence in taxable territory; or

2. In cases other than (a) above, any representative of such aggregator in taxable territory; or

3. In cases other than (a) and (b) above, a person appointed by such aggregator in taxable territory for payment of service tax.

‘Aggregator’ means a person who –

• Owns or manages a web based software application; and

• By means of such application and communication device enables potential customer to connect with service provider providing service under the brand name or trade name of aggregator.

Brand name or a trade name has been defined as a name/mark/invented word or writing/ symbol/monogram/logo/label/signature which is used to indicate a connection in course of trade, between the service and some person using the name or mark with or without any indication of the identity of that person.

2. The person liable to pay the freight provided he is located in the taxable territory would be the service recipient in case of Goods Transport Agency (“GTA”) services. If person liable to pay freight is located in the non-taxable territory, the GTA would be liable to pay the service tax.

3. In works contract services, where both service provider and service recipient is the person liable to pay tax, the service recipient has the option of choosing the valuation method as per choice, independent of valuation method adopted by the provider of service.

7. PRINCIPLES OF INTERPRETATION OF SERVICE DESCRIPTION

7.1 Principles of interpretation of service descriptions

7.1.1 The principles of interpretation of specified descriptions of service given in section 66F of the Act is relevant in the following area –

• In the negative list of services

• In the declared list of services

• In exemption notifications

• In the Place of Provision of Service Rules, 2012

• In other rules and notifications.

7.1.2 The principles of interpretation of “service descriptions” (say in the negative list or declared list or exemption notifications) are as under:

1. A reference to a “service” (called ‘main service’) (say, in the negative list or exemption) would not include reference to a service which is used for providing the main service. For example –

1. The entry ‘Transportation of goods on inland waterway’ in the negative list would not include an agent’s services that may be used for booking the cargo on inland waterway.

2. The services provided by RBI (main service) is in the negative list, any agency services provided by any bank to RBI, is actually an input service to RBI and would not take the character of services provided by RBI so as to be covered under the negative list and accordingly such agency services would be liable to service tax.

Thus, the nature of service (main service) would be governed by the service per se and not by any of the input used to provide such service.

2. Where a service is capable of differential treatment for any purpose based on its description, the most specific description shall be preferred over a general description. The CBEC Guidance Note known as Taxation of Services: An Education Guide gives the following illustration of this rule:

“The services provided by a real estate agent are in the nature of intermediary services relating to immovable property. As per the proposed Place of Provision of Service Rule, 2012, the place of provision of services provided in relation to immovable property is the location of the immovable property. However in terms of the rule 5 pertaining to services provided by an intermediary the place of provision of service is where the intermediary is located. Since Rule 5 of the draft5. Place of Provision of Services Rules, 2012’ provides a specific description of ‘estate agent’, the same shall prevail.”

7.2 Taxability of ‘bundled services’

7.2.1 Section 66F also provides for rules to determine the nature of a “bundled service” for the purpose of taxation. “Bundled service” means a bundle of provision of various services wherein an element of provision of one service is combined with an element or elements of provision of any other service or services. Example, air transport services provided by airlines wherein an element of transportation of passenger by air is combined with an element of provision of catering service on board.

7.2.2 The nature of such a “bundled service” is determined by the following rules:

1. If various elements of such service are naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which gives such bundle its essential character;

2. If various elements of such service are not naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which results in highest liability of service tax.

7.2.3 The TRU has clarified that some of the indicators to determine whether the services are bundled in the ordinary course of business are:

1. The perception or expectation of the consumer/recipient of the service;

2. The general practice of service providers in a particular area of business;

3. The nature of various services in the bundle of services;

4. There is a single price or the customer pays the same amount, no matter how much of the package they actually receive or use;

5. The elements are normally advertised as a package;

6. The different elements are not available separately;

7. The different elements are integral to one overall supply – if one or more is removed, the nature of the supply would be affected.

The Education Guide further states:

“No strait jacket formula can be laid down to determine whether a service is naturally bundled in the ordinary course of business. Each case has to be individually examined in the backdrop of several factors some of which are outlined above.”

8. EXEMPTIONS AND ABATEMENTS

8.1 Exemptions

8.1.1 In addition to the ‘Negative list of services’, certain services have been exempted from the levy of service tax which are referred to as -

1. Mega Exemption [Notification No. 25/2012 dated 20.6.2012] providing for 51 exemptions which are listed along with relevant definitions in Annexure 5;

2. Other exemptions which are listed in Annexure 6.

Some of the exempted services are health care, services provided by charities, religious persons, sportspersons, artists in folk and classical arts, individual advocates providing services to non-business entities, independent journalists, and services by way of animal care, construction services relating to specified infrastructures, canals, irrigation works etc.

8.2 Abatements

8. 2.1 The abatements under the negative list regime of taxation of services are given in Annexure 7.

9. PROCEDURES

9.1 Registration

9.1.1 Application for registration

1. Application for registration is to be made by every person liable for paying the service tax in Form ST-1 within 30 days from the date on which service tax is levied or within 30 days from the date of commencement of business, whichever is later, to the concerned Superintendent of Central Excise having jurisdiction.

2. (1) CBEC vide its Order No. 1/2015- Service tax dated 28.02.2015 have provided certain procedure for registration application for single premises. Within 7 days of making the application the service provider is required to submit the following

1. Copy of Permanent Account Number (PAN)

2. Photograph and identity proof of person filing the application

3. Address proof of the premises to be registered

4. Details of Main Bank account

5. Memorandum and Articles of Association along with list of directors

6. Authorisation for the person filing the application by the Board of Directors/Partners/Proprietor

7. Business transaction Nos. such as VAT Registration No, Customs Registration Nos., company Information No.; Import Export Code etc.

8. E-mail id & Mobile numbers.

For procedure of application electronically, see website: www.aces.gov.in.

2) The registration shall be granted within 2 days of filing online application through ACES website and such electronically downloaded registration certificate will be accepted as proof of registration. Physically signed copy of registration certificate would not be required.

3. Every service provider whose “aggregate value of all taxable services” in a financial year from one or more premises exceeds ₹ 9 lakhs shall make application to the Jurisdictional Superintendent of Central Excise in the Form ST-1 within 30 days of exceeding the aggregate value of ₹ 9 lakhs. The “aggregate value” is to be reckoned on the basis of sum total of first consecutive payments ‘received’ during the financial year towards taxable services. The payments received towards wholly exempt services are to be excluded.

4. Every input service distributor (as defined in CENVAT Credit Rules, 2004) shall make an application for registration in Form ST-1 to the Jurisdictional Superintendent of Central Excise within 30 days of commencement of business.

9.1.2 Intimation of any information or details or any change

The assessee shall intimate to the Jurisdictional Assistant Commissioner/Deputy Commissioner of Central Excise:

1. Any change in the information or details furnished by an assessee in the Form ST-1 at the time of obtaining registration, or

2. Any additional information or details the assessee intends to furnish within a period of 30 days of such change.

9.1.3 Premises to be registered

(a) General Rule -

If taxable services are provided from more than one premises, separate application for registration are to be made in respect of each such premises or office.

(b) Centralised registration -

Where a person, liable to pay service tax on a taxable service,–

1. Provides such service from more than one premises or offices;

2. Receives such service in more than one premises or offices;

3. Is having more than one premises or offices, which are engaged in relation to such service in any manner making such person liable for paying service tax and has a centralised billing or centralised accounting systems in respect of such service, located in one or more offices or premises, he may, at his option, register such premises or offices from where such centralised billing or centralised accounting systems are located with the previous permission of the Commissioner in whose jurisdiction the premises or offices from where centralised billing or centralised accounting is done, are located.

9.1.4 Multiple Taxable Services

Where an assessee is providing more than one taxable service, he may make a single application mentioning therein all the taxable services provided by him. In case the assessee is already registered for one service but subsequently becomes liable for another category of service, then he has to intimate the additional category of service as a change as mentioned under “Intimation of any information or details or any change” in para 9.1.2 above.

9.1.5 Certificate of registration

The Superintendent of Central Excise shall after due verification of the Form ST-1, grant a certificate of registration in Form ST-2 within 7 days from the date of receipt of the application. If registration certificate is not granted within 7 days, the registration applied for shall be deemed to have been granted.

9.1.6 Cancellation of Registration certificate

Every registered assessee who ceases to provide taxable service shall surrender his registration certificate immediately to the Superintendent of Central Excise. Where an assessee makes an application for cancellation or surrenders his certificate, the concerned Superintendent of Central Excise shall cancel the registration certificate after verifying that the assessee has paid all the dues under the service tax law.

9.2 Payment of Service Tax [Section 68 & Rules 2(1)(d) and 6]

9.2.1 Time limit for payment

(a) Service tax on the value of taxable services which is deemed to be provided as per the Point of Taxation Rules, 2011 during any calendar month (except March) is payable by the

– 6th of the month immediately following the said calendar month in case of assessee’s depositing tax electronically through internet banking.

– 5th of the month immediately following the said calendar month in other cases.

(b) However, where the assessee is an individual or a proprietary firm or a partnership firm (including Limited Liabilities Partnerships) service tax on the value of taxable services which is deemed to be provided as per the Point of Taxation Rules, 2011 during any quarter (except quarter ended March) is payable by the

– 6th of the month immediately following the said quarter in case of assessee’s depositing tax electronically through internet banking.

– 5th of the month immediately following the said quarter in other cases.

(c) The service tax on the value of taxable services which is deemed to be provided as per the Point of Taxation Rules, 2011 in the month / quarter ended March should be paid by 31st of March.

N.B. In case of payment by cheque the date of payment is the date on which the cheque is tendered to the designated bank, provided the cheque is not dishonoured in the course of clearing

(d) Further, the facility of paying service tax on payment basis is available to individuals and partnership firms (including limited liability partnership) up to a turnover of ₹ 50 lakh in a financial year provided the taxable turnover did not exceed this limit in the previous financial year. For computing the above limits, the turnover of the whole entity is required to be summed up and not any single registration.

(e) The due date is governed by date and point of time when ‘service is deemed to be provided’. The general rule when service is deemed to be provided [refer para 4.2.1 under the Chapter 4 “Time of supply of service”] is the earliest of the following dates:

1. Date of issue of invoice / date of completion of provision of services; or

2. Date of receipt of payment subject to the exceptions in certain circumstances as enlisted in para 4.2.6 under the Chapter 4 “Time of supply of service”. Thus, service tax would be payable on a hybrid system i.e. accrual or cash whichever is earlier.

9.2.2 Date for determining the rate of service tax

Section 67A inserted with effect from 28.05.2012 to prescribe the relevant date for the application of rate of exchange, valuation or rate of service tax. The section provides that the rate of service tax, value of a taxable service and rate of exchange, if any, shall be the rate of service tax or value of a taxable service or rate of exchange, as the case may be, in force or as applicable at the time when the taxable service has been provided or agreed to be provided. The time when the taxable service has been provided or agreed to be provided is determined under the PoT Rules. This section would address the issue with regard to the rate of exchange that must be applied to determine the value of a taxable service where invoiced amount is in foreign currency. In such cases, the rate of exchange applicable shall be the rate prevailing at the time when services are deemed to have been provided as per the PoT Rules i.e. date of issue of invoice/date of payment/date of completion of service as the case may be. The rate of exchange shall be the rate of exchange as per the generally accepted accounting principles on the POT date.

9.2.3 Payment of service tax in advance

An assessee has an option to pay an amount as service tax in advance. The amount so paid in advance is allowed to be adjusted against any subsequent period’s tax liability provided:

1. The details of the advance paid tax is intimated to the Jurisdictional Superintendent of Central Excise within 15 days from the date of payment; and

2. The details of payment and adjustment of a tax paid in advance is disclosed in the returns.

9.2.4 Manner of payment

1. The service tax shall be paid in Form GAR-7 challan into the designated bank. The said Form GAR-7 challan for each month/quarter is to be submitted with the half-yearly return.

2. All the assessees are liable to pay service tax electronically through internet banking irrespective of the amount of service tax payable. However, the Assistant Commissioner/ Deputy Commissioner of Central Excise has been empowered (for reasons to be recorded in writing) to allow the assessee to deposit Service Tax by any mode other than internet banking. For procedure of e-payment refer website www.aces.gov.in.

9.2.5 Adjustment of taxes

1. Where service tax is paid on invoice issued or advance payment received for a ‘service to be provided’, but which the assessee has not so provided wholly or partially for any reason or where the amount is renegotiated due to deficient provision of service or any terms contained in a contract, he can take ‘credit’ of such tax subject to the condition that –

1. Where the assessee had received the payment, the assessee should have refunded the payment or part thereof received for the services so provided; or

2. Where the assessee has not received any payment, but had paid the service tax on issue of invoice the assessee should have issued a credit note for value of service not so provided.

2. The Ministry’s Circular No. 341/34/2010-TRU dated 31.3.2011 explains:

“If the amount of invoice is renegotiated due to deficient provision or in any other way changed in terms of conditions of the contract (e.g. contingent on the happening or non-happening of a future event), the tax will be payable on the revised amount provided the excess amount is either refunded or a suitable credit note is issued to the service receiver. However, concession is not available for bad debts.”

Thus, as per the above Circular service tax on bad debts cannot be adjusted.

3. An assessee can adjust excess service tax paid against his succeeding period’s [ i.e. next month / quarter] liability provided the excess amount paid is on account of reasons not involving interpretation of law, taxability, valuation or applicability of any exemption notification.

4. If the service provider has paid excess tax in any month / quarter on account of non-availment of the deduction in respect of property taxes paid from commercial rentals, the assessee may adjust such excess amount paid by him against his subsequent service tax liability within one year from the date of payment of such property tax. The details of such adjustment shall be intimated to the jurisdictional Superintendent of Central Excise within 15 days from the date of such adjustment.

9.2.6 Interest on delayed payment of tax

1. Failure to pay service tax on time attracts simple interest u/s. 75 at a rate not below 10% p.a. but not exceeding 36% p.a. as may be notified by the Central Government. The Government has vide Notification No. 12/2014–ST dated 11.7.2014 w.e.f 1.10.2014 provided a slab system of interest rate ranging from 18%-30% as under:

2. The above rate of interest would be reduced by 3% p.a. for tax-payers –

1. Whose turnover, in any of the financial years covered by a show cause notice issued under section 73 does not exceed ₹ 60 lakhs; or

2. Whose turnover in the immediately preceding financial year does not exceed ₹ 60 lakhs.

9.3 Returns [Section 70 and Rules 5(2), 7,7b]

9.3.1 The assessee must himself assess the service tax due on the services provided by him and thereafter furnish the returns.

9.3.2 The returns are to be filed electronically in Form ST-3 on half-yearly basis by the 25th of the month following the particular half year. For procedure for filing returns electronically see website: www.aces.gov.in

9.3.3 In the case of new assessees who have not yet filed their returns, such assessees shall at the time of filing their returns for the first time furnish in duplicate to the Superintendent of Central Excise a “list of all accounts maintained in relation to service tax” of -

1. All the records prepared or maintained by the assessee for accounting of transactions in regard to,-

1. Providing of any service,

2. Receipt or procurement of input services and payment for such input services;

3. Receipt, purchase, manufacture, storage, sale, or delivery, as the case may be, in regard of inputs and capital goods;

4. Other activities, such as manufacture and sale of goods, if any.

2. All other financial records maintained by him in the normal course of business.

9.3.4 A ‘Nil’ return also has to be filed.

9.3.5 An assessee may revise his returns to correct a mistake or omission, within 90 days from the date of submission of the original return. Further it is also provided that the limitation period [18 months / 5 years] for issue of show cause notice u/s. 73 for the purpose of recovery of service tax will be reckoned from the date of submission of such revised return.

9.4 Records [Rule 4A, Rules 4C and 5]

9.4.1 General

Records (including computerised data) as maintained by an assessee in accordance with various laws in force from time to time shall be acceptable for service tax. It is obligatory for an assessee to preserve records (mentioned in para 9.3.3.) at least for a period of 5 years immediately after the financial year to which such records pertain. These records may be preserved in electronic form in such manner that every page of the record so preserved shall be authenticated by means of digital signature. The conditions, safeguards and procedure to be followed by preserving digitally signed records are to be specified.

9.4.2 Examination and inspection of records

Rule 5A prescribes the provisions for entry and access to registered premises and furnishing of records. It provides as follows:

1. An officer authorised by the Commissioner shall have access to any registered premises for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of revenue.

2. It shall be obligatory on every assessee to make available to such officer or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India or Cost Accountant or Chartered Accountant nominated for special Audit within the time limit specified by such officer or the audit party for his scrutiny –

1. The list of all accounts maintained in relation to service tax which he has submitted to the department at the time of filing his first return;

2. The cost audit reports if any, under section 148 of the Companies Act,2013.

3. The income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961.

9.4.3 Requirements of an invoice

Every service provider is required to issue an invoice / bill / challan containing the following:

1. Serial number;

2. Name, address and registration number of the service provider;

3. Name and address of the service receiver;

4. Description and value of taxable service provided or agreed to be provided.

5. Service tax payable thereon;

6. Signature of the service provider or his authorised person

N.B. (1) In case of service providers providing banking and financial services the requirement of mentioning serial number and the address of the service receiver has been dispensed with.

2. In case of transport of passengers, ‘tickets’ (e-ticket or other tickets) shall also be considered as invoice. Further, the requirement of mentioning registration number and the address of the service receiver in the invoice / bill / challan has been dispensed with.

3. In case of goods transport agency, in addition to the requirements stated above the following details are also to be shown:

• Details of Consignment note number and date.

• Gross weight of the Consignment.

9.4.4 Non-issuance of invoices in case of excess payments up to ₹ 1,000/-

An exemption has been given from issuance of an invoice where there is an excess payment received by the service provider subject to the following conditions:

1. the excess payment does not exceed ₹ 1,000/-.

2. The ‘point of taxation’ in respect of such payment has been determined as per the options given in the PoT Rules which is date of issue of invoice or date of completion of provision of service if invoice is not issued within prescribed time.

9.4.5 Time limit for issue of invoice

1. The invoice / bill / challan has to be issued within the following time limit.

2. The period of 30 days /45 days would be reckoned from -

1. The date of completion of provision of services or receipt of payment towards value of such taxable services, whichever is earlier in normal cases.

2. The ‘specified date’ in case of continuous supply. The ‘specified date’ is the date of completion of each event / milestone, which obligates payment by the service receiver. However, the words ‘continuous supply of service’ have not been defined in the Service Tax Rules, 1994 but presumably the definition of ‘continuous supply of service’ as per PoT rules would hold good.

9.4.6 Requirements of a consignment note to be issued by a goods transport operator

All Goods Transport Agencies shall issue a “Consignment note” to a customer except where the services are wholly exempt from Service Tax. A “Consignment note” is defined as a document issued by a Goods Transport Agency against the receipt of goods for the purpose of transport of goods by road in a goods carriage which contains the following information:

1. Serial number

2. Name of the Consignor and Consignee

3. Registration number of the Goods Carriage

4. Details of goods transported

5. Details of place of origin and destination

6. Person liable to pay Service Tax viz., whether Consignor or Consignee or Goods Transport Agency.

9.4.7 The invoice, bill or challan or consignment note may be authenticated by a digital signature.

9.5 Recovery of service tax not levied or paid or short levied or short paid or erroneously refunded (sec.73) & adjudication of penalties (section 83A)

9.5.1 Time limit for issue of SCN

Section 73 empowers Central Excise Officer to issue show cause notice where service tax has not been levied or paid or short levied or short paid or erroneously refunded (hereinafter referred to as “said defaults”) and thereafter determine the amount of service tax due and payable. The show cause notice has to be issued within —

(i) 5 years from the “relevant date” in case of :

• Fraud;

• Collusion; or

• Wilful mis-statement; or

• Suppression of facts; or

• Contravention of any of the provisions of the Act or Rules with an intent to evade payment of service tax.

(ii) 18 months [prior to 28.05.2012 – 1 year] from the “relevant date” in other cases.

The “relevant dates” would be as under :

9.5.2 In respect of follow-on show cause notices for subsequent period issued on the same ground only statement of tax due for subsequent period served on assessee with reference to the earlier demand notice will be deemed as a show cause notice. Requirement of mentioning the grounds in respect of such subsequent show cause notice has been dispensed with.

9.5.3 W.e.f. 6.8.2014 the SCNs may have to be adjudicated within the prescribed time limit

The above time limits are to be adhered where it is possible to do so.

9.6 Payment of tax, etc suo motu before the issue of show cause notice

9.6.1 In case where there has been a short-levy, non-levy, short-payment or non-payment of tax and the assessee has –

1. Paid, before the issue of show cause notice, such service tax ascertained on his own or by the Central Excise Officer, along with interest; and

2. Informed the Central Excise Officer of such payment in writing, then the Central Excise Officer shall not issue a show cause notice in respect of the above defaults. The above facility shall not be available in cases where short-levy, non-levy, short-payment or non-payment of tax is on account of fraud, collusion, wilful misstatement, suppression, etc.

9.7 Section 83A provides for adjudication of penalty proceedings by Central Excise Officers empowered by the Central Board of Excise and Customs.

9.8 The Central Excise adjudication procedures are made applicable to service tax. The procedure provides as follows:

1. An opportunity of being heard shall be given in all proceedings if the assessee so desires;

2. Adjournments of hearings may be granted to an assessee if sufficient cause is shown;

3. Not more than 3 adjournments shall be granted to an assessee.

9.9 Provisional Payment and Assessment (Rule 6)

9.9.1 When the assessee is unable to correctly estimate actual service tax payable for any month / quarter he may make a request in writing to the AC / DC to pay tax on a provisional basis who on receipt of such request allow payment of tax on provisional basis.

9.9.2 On receipt of the order of the AC / DC allowing provisional assessment service tax maybe initially paid on a provisional basis.

9.9.3 Where service tax is paid provisionally a monthly statement in Form ST-3A giving difference between provisional amount of service tax deposited and actual amount of service tax payable is to be filed along with the half-yearly return in Form ST-3.

9.9.4 Where the assessee has filed Form ST-3A the AC / DC shall complete the assessment after calling for details if any.

9.9.5 The provisions of the Central Excise Rules, 2002 shall apply except in so far as they relate to the execution of a bond.

9.10 Other Matters

In cases where a Show Cause Notice triggers the extended period of limitation on the allegation of an intent to evade payment of duty/tax, and an appellate authority holds that there is no intent to evade, the Central Excise Officer shall determine the duty/tax payable for the normal period as if the Show Cause Notice was issued for the normal period of limitation. Thus the demand for the normal period would survive.

9.11 Appeals to the Commissioner (Appeals)

9.11.1 Appeals on review by the department (Section 84)

1. An application maybe filed before the CCE(A) by an adjudicating authority subordinate to the CCE on the direction of the CCE who is satisfied that the order of the adjudicating authority lacks legality or propriety for determination of points arising out of the order.

2. The CCE shall direct such sub-ordinate authority within 3 months from the date of communication of Order-In-Original and sub-ordinate authority shall make an application before the CCE(A) within 1 month from the date of receipt of such direction / order.

9.11.2 Other Appeals by the assessee / department (Section 85 & Rule 8)

1. An appeal may be filed before the Commissioner of Central Excise (Appeals) [“CCE (A)”] by any person aggrieved by an order passed by an adjudicating authority below the rank of a Commissioner of Central Excise (“CCE”)

2. The appeal is to be filed in duplicate within 2 months [Prior to 28.05.2012 - 3 months] of receipt of adjudication order in Form ST–4 along with statement of facts, grounds of appeal, and a copy of decision or order appealed against.

3. For filing appeals an assessee is required to make a mandatory fixed pre-deposit of duty demanded [See para 9.13]

4. Appropriate court fees stamp would be applicable.

9.12 Appeals to the Appellate Tribunal [Section 86 & Rule 9]

9.12.1 Appeals by the assessee

1. An appeal may be filed before the Tribunal where an assessee aggrieved by an order passed by a CCE u/s. 73, 83A or 846 or an order passed by a CCE(A) u/s. 85. However in respect of orders passed by CCE(A) in matters relating to grant of rebate on inputs/ input service used for export of services the remedy would be to file a revision application before Central Government u/s. 35EE of Central Excise Act, 1944 .

2. The appeal is to be filed in quadruplicate within 3 months of receipt of order to be appealed against in Form ST-5 along with statement of facts, grounds of appeal and copies of order appealed against (including one certified copy). The Tribunal may admit filing of appeal after expiry of said period if it is satisfied that there was a sufficient cause for not presenting the appeal within the said period.

3. The filing fees is based on the quantum of demand which is as follows:

In addition to the above, a fee of ₹ 500/- is payable for a application (other than that filed by the CCE / AC / DC) for rectification of mistake in the Tribunal’s orders or for restoration of an appeal or for any other purpose.

4. For filing appeals an assessee is required to make a mandatory fixed pre-deposit of duty demanded [See para 9.13]

9.12.2 Appeal by the department

1. An application to the Tribunal maybe filed by the –

1. CCE on the direction of the Committee of Chief Commissioners of Central Excise (consisting of 2 Chief Commissioners) objecting to any order passed by a CCE u/ss. 73, 83A or 847; or

2. A Central Excise Officer on the direction of the Committee of Commissioners of Central Excise (consisting of 2 Commissioners) objecting to any order passed by the CCE(A) u/s. 85.

2. The application is to be filed in Form ST-7, in quadruplicate, within 4 months [prior to 28.5.2012 - 3 months] from the date on which the order sought to be appealed against is received by the Committee of Chief Commissioners or by the Committee of Commissioners as the case may be.

3. The appeal shall be accompanied by statement of facts, grounds of application, and

1. Copy of order passed by CCE (including one certified copy) and copy of the direction issued by the Committee of Chief Commissioners; or

2. Copy of the order passed by the CCE(A) (including one certified copy) and copy of the direction issued by the Committee of Commissioners,as the case may be.

9.12.3 Memorandum of Cross-objections (Section 86 & Rule 9)

1. An assessee or the CCE or a Central Excise Officer subordinate to the CCE may present a memorandum of Cross-objections, within 45 days from receipt of notice or information about appeal filed.

2. The memorandum of Cross-objections is to be filed in quadruplicate in Form ST-6.

9.13 Mandatory fixed pre-deposit for filing appeals

9.13.1 An assessee is required to make a fixed mandatory pre-deposit of certain percentage of adjudicated demands (‘duty / tax demanded’ or ‘penalty’) for filing an appeal as under:

Notes

1. ‘Duty / tax demanded’ includes duty/tax collected (even if not payable), erroneous cenvat credit taken, amount payable u/r.6 of Cenvat Credit Rules, 2004.

2. The above provisions shall not apply to stay application/appeals pending as on 6.8.2014.

9.14 Refunds

9.14.1 In the event the assessee has to claim a refund he has to comply with section 11B of the Central Excise Act, 1944 which is made applicable to service tax.

9.14.2 A refund claim must comply with the following conditions:

1. It maybe in Form R. [Though no form is prescribed, the Central Excise Rules had earlier prescribed Form R].

2. It should be filed before the expiry of the limitation period of one year from the relevant date as specified in Explanation to Section 11B one of which is from the date of payment of tax.

3. Proof should be adduced that the incidence of tax has not been passed on to any person i.e. tax has been borne by the applicant.

9.15 Miscellaneous

9.15.1 The Act / Rules also provides for the following:

1. Best Judgment Assessment;

2. Interest on delayed refund of pre-deposit;

3. Rectification of mistake apparent from record by Central Excise Officer;

4. Power to search and power to seize documents, books or things during search;

5. Deposit of excess service tax collected from any person along with interest to the Government.

6. Provisional attachment

7. Publication of information in respect of certain persons in certain cases

8. Recovery of amounts due to the Government.

9. Service tax return preparer scheme.

10. Settlement Commission provisions

11. Revision of Orders by the Central Government

12. Mandatory furnishing of information returns by assessee and specified government and regulatory bodies

9.16 Penal Consequences

1. Note:

1. If the service tax amount gets increased in any appellate proceeding, then the benefit of reduced penalty (i.e. 25%) under para (iii) in respect of section 76 and under para (iv) in respect of section 78 shall be admissible if service tax, interest and reduced penalty (i.e. 25% of the increase in penalty) is paid within 30 days of receipt of such appellate order.

2. If the service tax amount gets modified in any appellate proceeding where penalty u/s. 78 is sought to be imposed, then the person liable to pay service tax shall be liable to pay the modified tax, interest and penalty as specified in the order.

3. Further, the assessee can file an appeal and he can keep the matter alive even if he opts for the above options proposed except option under para (ii) in respect of section 76 or option under para (iii) in respect of section 78, since in such cases the proceedings are deemed to be concluded.

9.17 Prosecution under service tax law

9.17.1 The prosecution provisions under the service tax law are governed by section 89. Further sections 9A, 9AA, 9B, 9E and 34A of the Central Excise Act, 1944 have been made applicable to service tax. These provisions together constitute the provisions relating to prosecution of offences which are briefly described below.

9.17.2 Section 89 prescribes the offences and the quantum of punishment. The punishable offences enumerated in section 89(1) are the following :

1. Knowingly evading payment of service tax.

2. Availment and utilisation of credit without actual receipt of taxable service or excisable goods either fully or partially in violation of the Act or Credit Rules;

3. Maintenance of false books of account;

4. Failure to supply information or supply of false information;

5. Failure to pay to the Government any amount collected as service tax beyond a period of six months from the date on which such payment became due.

9.17.3 The quantum of punishment imposable is detailed in the table below:

9.17.4 The provisions of ss. 9A, 9AA, 9B, 9E and 34A of the Central Excise Act, 1944 have been made applicable to service tax. These are briefly dealt with below:

1. The offences would be ‘non-cognisable’ i.e. an offence in which a police officer has no authority to arrest without a warrant. Further the Principal Chief Commissioner/ Chief Commissioner of Central Excise is also empowered to compound the offences on payment of the compounding amount as may be prescribed [s.9A].

2. If an offence is committed by a company (which includes a firm), the persons liable to be proceeded against and punished are : (a) the company; (b) every person, who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business except where he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence; and (c) any director (who in relation to a firm means a partner) , manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed.[s.9AA].The court is empowered to publish the name, place of business, etc. of persons convicted under the Act [s. 9B]

3. In case of a person who is less than 18 years of age, the court, under certain circumstances, is empowered to release the accused on probation of good conduct under section 360 of the Code of Criminal Procedure, 1973 or to release the offenders on probation under the Probation of Offenders Act, 1958. [s. 9E]

4. The imposition of penalty would not prevent infliction of other punishment on the offender. [s. 34A].

9.18 Cognizance of offences and power to arrest

The provisions relating to arrest of persons for offences under the Act are summarised below:

1. Offences are divided into two categories –

1. Cognisable offences i.e. where the person can be arrested without ‘warrant’; and

2. Non-cognisable offences [i.e. offences other than (a) above].

2. Failure to pay tax collected beyond 6 months from due date where the ‘amount’ exceeds ₹ 50 lakhs is the only cognizable offence. All other punishable offences (viz., knowingly evading service tax, availing bogus credits, supplying false information, etc.) are non-cognisable offences.

3. If the Principal Commissioner/Commissioner of Central Excise has reason to believe that any person has committed an offence u/s. 89 of the Act where the ‘amount’ exceeds ₹ 50 lakhs he may, by general or special order, authorise any officer of Central Excise, not below the rank of Superintendent of Central Excise, to arrest such person.

4. Where a person is arrested for any cognisable offence [see point (ii) above], every officer authorised to arrest a person shall, inform such person of the grounds of arrest and produce him before a magistrate within 24 hours.

5. In the case of a non-cognisable and bailable offence, the Assistant/ Deputy Commissioner, shall, for the purpose of releasing an arrested person on bail or otherwise, have the same powers and be subject to the same provisions as an officer in charge of a police station has, and is subject to, under section 436 of the Code of Criminal Procedure, 1973 (“CrPC”). Section 436 of CrPC provides for the cases where bail maybe taken.

6. All arrests shall be carried out in accordance with the provisions of the CrPC relating to arrests.

10. ADVANCE RULING (CHAPTER VA – SECTIONS 96A TO 96I)

10.1 The Finance Act, 2003 introduced Advance Ruling mechanism in service tax. The ruling shall be in respect of a question of law or fact regarding the liability to pay service tax in relation to a service proposed to be provided by –

1. A non-resident setting up a “joint venture in India” in collaboration with a non-resident or a resident; or

2. A resident setting up a “joint venture in India” in collaboration with a non-resident; or

3. A wholly owned subsidiary Indian company, of which the holding company is a foreign company.

4. Existing “joint venture in India”

5. Any class or category of residents notified by the Central Government. In this regard the Central Government has notified ‘public sector companies’ (w.e.f. 20.8.2009), ‘resident public limited companies’ (w.e.f 1.3.2013) and ‘resident private limited companies’ (w.e.f 11.7.2014) resident firm w.e.f. 01.3.2015 [Resident Firm shall include Limited Liability Partnership/Sole proprietorship/ individual/one person company]

For the purpose of clauses (a), (b), & (d) above a “joint venture in India” is defined as follows:

“joint venture in India” means a contractual arrangement whereby two or more persons undertake an economic activity which is subject to joint control and one or more of the participants or partners or equity holders is a non-resident having substantial interest in such arrangement.”

10.2 The question on which the advance ruling is sought shall be in respect of-

1. Classification of any service as a taxable service;

2. The valuation of taxable services for charging service tax;

3. The principles to be adopted for the purposes of determination of value of the taxable service;

4. Applicability of notifications issued;

5. Admissibility of credit of duty or tax in terms of the rules made in this regard;

6. Determination of the liability to pay service tax on a taxable service.

11. DUE DATES FOR SERVICE TAX

NOTE: The due date for non e-payment is relevant only in case where AC/DC allows non e-payment.