STATUTORY PROVISIONS RELATING TO SERVICE TAX
FINANCIAL ACT, 1994
Service Tax
64. Extent, commencement and application
(1) This Chapter extends to
the whole of India except the State of Jammu and Kashmir.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.1
(3) It shall apply to taxable services provided on or after the
commencement of this Chapter.
2[65. Definitions
In this
Chapter, unless the context otherwise requires, -
(1) "actuary" has the meaning assigned to it in clause (1) of section 2 of the Insurance Act, 1938 (4 of 1938);
(2) "advertisement" includes any notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by means of light, sound, smoke or gas;
3[3A) "aircraft"
has the meaning assigned to it in clause (1) of section 2 of the Aircraft Act,
1934 (22 of 1934);
(3B) "aircraft
operator" Means any commercial concern which provides the service of
transport of goods by aircraft,
(3C) "aircraft" has
the meaning assigned to it in clause (b) of section 2 of the Airports Authority
of India Act, 1994 (55 of 2994);
(3D) "airports
authority" means the Airports Authority of India constituted under section
3 of the Airports Authority of India Act, 1994 (55 of 1994) and also includes
any person having the charge of management of an airport or a civil enclave]
(3) "advertising agency" means any commercial concern engaged in providing any service connected with the making, preparation, display or exhibition of advertisement and includes an advertising consultant;
(4) "air travel agent" means any person engaged in providing any service connected with the booking of passage for travel by air;
(5) "Appellate Tribunal" means the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962);
(6) "architect" means any person whose name is, for the time being, entered in the register of architects maintained under section 23 of the Architects Act, 1972 (20 of 1972) and also includes any commercial concern engaged in any manner, whether directly or indirectly in rendering services in the field of architecture;
(7) "assessee" means a person
liable to pay the service tax and includes his agent;
(8) "authorised dealer of foreign exchange" has the meaning assigned to .'authorised person" in clause (c) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999);
(9) "authorised service station" means any service station, or centre, authorised by any motor vehicle manufacturer, to carry out any service or repair of any motor car, light motor vehicle or two wheeled motor vehicle manufactured by such manufacturer;
(10) "banking" has
the meaning assigned to it in clause (b) of section 5 of the Banking Regulation
Act, 1949 (10 of 1949);
(11) "banking company" has the meaning assigned to it in clause (a) of section 45A of the Reserve Bank of India Act, 1934 (2 of 1934);
1[(12) "banking
and other financial services" means -
(a) the following services
provided by a banking company or a financial institution including a non-banking
financial company or any other body corporate or commercial concerti, namely:
(i) financial leasing
services including equipment leasing and hare purchase,
(ii) credit card services;
(iii) merchant banking
services;
(iv) securities and foreign
exchange (forex) braking,
(v) asset management
including portfolio management, all forms of fund management, pension fund
management, custodial, depository and trust services, but doe5 not include cash
management,
(vi) advisory and other
auxiliary financial services including investment and portfolio research and
advice, advice on mergers and acquisitions and advice on corporate
restructuring and strategy,
(vii) provision and transfer of information and
data processing; and
(viii) other financial
services, namely, lending, issue of pay order, demand draft, cheque, letter of
credit and bill of exchange; providing bank guarantee, over draft facility,
bill discounting facility, safe deposit locker, safe vaults; operation of bank
accounts,
(b) foreign exchange braking
provided by a foreign exchange broker other than those covered under sub-clause
(a)]
(13) "Board" means the Central Board of Excise and Customs
constituted under the Central Boards of Revenue Act, 1963 (54 of 1963);
(14) "body corporate" has the meaning assigned to it in clause (7)
of section 2 of the Companies Act, 1956 (1 of 1956);
(15) "broadcasting"
has the meaning assigned to it in clause (c) of section 2 of the Prasar Bharati
(Broadcasting Corporation of India) Act, 1990 (25 of 1990) and also includes
programme selection, scheduling or presentation of sound or visual matter on a
radio or a television channel that is intended for public listening or viewing,
as the case may be; and in the case of a broadcasting agency or organisation,
having its head office situated in any place outside India, includes the
activity of selling of time slots or obtaining sponsorships for broadcasting of
any programme or collecting the broadcasting charges on behalf of the said
agency or organisation, by its branch office or subsidiary or representative in
India or any agent appointed in India or by any person who acts on its behalf
in any manner,
(16) "broadcasting
agency or organisation" means any agency or organisation engaged in
providing service in relation to broadcasting in any manner and, in the case of
a broadcasting agency or organisation, having its head office situated in any
place outside India, includes its branch office or subsidiary or representative
in India or any agent appointed in India or any person who acts on its behalf
in any manner, engaged in the activity of selling of time slots for
broadcasting of any programme or obtaining sponsorships for programme or
collecting the broadcasting charges on behalf of the said agency or
organi5ation;
(17) "beauty treatment" means face and beauty treatment, cosmetic treatment, manicure, pedicure or counselling services on beauty, face care or make-up;
(18) "beauty parlour" means any
establishment providing beauty treatment services;
1[(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 tile client; or
(iv) procurement of goods or
services, which are imputs for the client; or
(v) production of goods on
behalf of the client, or
(vi) provision of service on
behalf of the client; or
(vii) a service incidental
or auxiliary to any activity specified in sub-clauses (i) to (vi), such
(is billing, issue or collection or recovery of cheques, payments, maintenance
of accounts and remittance, inventory management, evaluation or development of
prospective customer or vendor, public relation services, management or
supervision,
and
includes services as a commission agent, but does not include any information
technology service and any activity that amounts to "manufacture"
within the meaning of clause (f) of section 2 of the Central Excise Act, 1944
(1 of 1944).
Explanation,
- For the removal of doubts, it is hereby declared that for the purposes
of this clause, "information technology service" means any service in
relation to designing, developing or maintaining of computer software, or
computerised data processing or system networking, or any other service
primarily in relation to operation of computer systems;
(19A) "business exhibition" means an
exhibition, -
(a) to market; or
(b) to promote, or
(c) to advertise; or
(d) to showcase,
any
product or service, intended for the growth in business of the producer or
provider of such product or service, as the case may be,]
(20) "cab" means a motorcab or
maxicab,
(21) "cable operator" has the meaning assigned to it in clause (aa) of section 2 of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995);
(22) "cable service" has the meaning assigned to it in clause (b) of section 2 of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995);
(23) "cargo handling service" means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods;
(24) "caterer" means any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or occasion;
1[(24A) "civil
enclave" has the meaning assigned to it in clause (i) of section 2 of the
Airports Authority of India Act, 1994 (55 of 1994);]
(25) "clearing and forwarding agent" means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent;
(26) "commercial training or coaching" means any training or coaching provided by a commercial training or coaching centre;
(27) "commercial training or coaching centre" means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes but does not include pre-school coaching and training centre or any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognised by law for the time being in force;
1[(28) * * *]
(29) "commissioning and
installation agency" means any agency providing service in relation to 2[erection,] commissioning or installation;
(30) "computer network" has the meaning assigned to it in clause (f) of subsection (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
3[(30A) "construction
service" means, -
(a) construction of new building or civil
structure or a part thereof, or
(b) repair, alteration or
restoration of, or similar services in relation to, building or civil
structure,
which is -
(i) used, or to be used,
primarily for, or
(ii) occupied, or to be
occupied, primarily with, or
(iii) engaged, or to be
engaged, primarily in,
commerce
or industry, or work intended for commerce or industry but does not include
road, airport, railway, transport terminal, bridge, tunnel, long distance
pipeline and dam:]
(31) "consulting engineer" means any professionally qualified engineer or an engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering;
(32) "convention" means a formal meeting or assembly which is not open to the general public, but does not include a meeting or assembly, the principal purpose of which is to provide any type of amusement, entertainment or recreation;
(33) "courier agency" means a commercial concern engaged in the door-to-door transportation of time-sensitive documents, goods or articles utilising the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles;
(34) "credit rating agency" means any commercial concern engaged in the business of credit rating of any debt obligation or of any project or programme requiring finance, whether in the form of debt or otherwise, and includes credit rating of any financial obligation, instrument or security, which has the purpose of providing a potential investor or any other person any information pertaining to the relative safety of timely payment of interest or principal;
(35) "custom house agent" means a person licensed, temporarily or otherwise, under the regulations made under sub-section (2) of section 146 of the Customs Act, 1962 (52 of 1962);
(36) "data" has the meaning assigned to it in clause (o) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
(37) "dry cleaning" includes dry cleaning of apparels, garments or other textile, fur or leather articles;
(38) "dry cleaner" means any commercial concern providing service in relation to dry cleaning;
(39) "electronic form" has the meaning assigned to it in clause (r) of subsection (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
1(39A) "erection,
commissioning or installation" means any service provided by a
commissioning and installation agency in relation to erection, commissioning or
installation of plant, machinery or equipment,-]
(40) "event management" means any service provided in relation to planning, promotion, organising or presentation of any arts, entertainment, business, sports or any other event and includes any consultation provided in this regard;
(41) "event manager" means any person who is engaged in providing any service in relation to event management in any manner;
(42) "facsimile (FAX)" means a form of telecommunication by which fixed graphic images, such as printed texts and pictures are scanned and the information converted into electrical signals for transmission over the telecommunication system;
(43) "fashion designing" includes any activity relating to conceptualising, outlining, creating the designs and preparing patterns for costumes, apparels, garments, clothing accessories, jewellery or any other articles intended to be worn by human beings and any other service incidental thereto;
(44) "fashion designer" means any person engaged in providing service in relation to fashion designing;
(45) "financial institution" has the meaning assigned to it in clause (c) of section 45-1 of the Reserve Bank of India Act, 1934 (2 of 1934);
(46) "foreign
exchange broker" includes any authorised dealer of foreign exchange;
1[(46A) "forward contract" has the meaning assigned to it in clause (c) of section 2 of the Forward Contracts (Regulation) Act, 1952 (74 of 1952);]
(47) "franchise" means an agreement
by which -
(i) franchisee is granted
representational right to sell or manufacture goods or to provide service or
undertake any process identified with franchisor, whether or not a trade mark,
service mark, trade name or logo or any such symbol, as the case may be, is
involved;
(ii) the franchisor provides
concepts of business operation to franchisee, including know-how, method
of operation, managerial expertise, marketing technique or training and
standards of quality control except passing on the ownership of all know-how
to franchisee;
(iii) the franchisee is
required to pay to the franchisor, directly or in directly, a fee; and
(iv) the franchisee is under
an obligation not to engage in selling or providing similar goods or services
or process, identified with any other person,
(48) "franchisor" means any person who enters into franchise with a franchisee and includes any associate of franchisor or a person designated by franchiser to enter into franchise on his behalf and the term "franchisee" shall be construed accordingly;
(49) "general insurance business" has the meaning assigned to in it in clause (g) of section 3 of the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972);
(50) "goods" has the meaning assigned to it in clause (7) of section 2 of the Sale of Goods Act, 1930 (3 of 1930);
2[(50A)"goods carriage" has the meaning assigned to it in clause (14) of section 2 of the Motor Vehicels Act, 1983 (59 of 1988);
(50B) "goods transport
agency" means any commercial concern which provides service in relation to
transport of goods by road and issues consignment note, by whatever name
called;]
(51) "health and fitness service" means service for physical well being such as, sauna and steam bath, turkish bath, solarium, spas, reducing or slimming salons, gymnasium, yoga, meditation, massage (excluding therapeutic massage) or any other like service;
(52) "health club and fitness centre" means any establishment, including a hotel or a resort, providing health and fitness service;
(53) "information" has the meaning assigned to it in clause (v) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
(54) "insurance
agent" has the meaning assigned to it in clause (10) of section 2 of the
Insurance Act, 1938 (4 of 1938);
(55) "insurance auxiliary service" means any service provided by an actuary, an intermediary or insurance intermediary or an insurance agent in relation to general insurance business or life insurance business and includes risk assessment, claim settlement, survey and loss assessment;
1[(55A) "intellectual property right" means any right to intangible property, namely, trade marks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright,
(55B) "intellectual property
service" means, -
(a) transferring, whether
permanently or otherwise; or
(b) permitting the use or
enjoyment of,
any intellectual property right;]
(56) "intermediary or insurance intermediary" has the meaning assigned to it in clause W of sub-section (1) of section 2 of the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999);
(57) "internet cafe"
means a commercial establishment providing facility for accessing internet;
(58) "insurer" means any person carrying on the general insurance business or life insurance business in India;
(59) "interior decorator" means any person engaged, whether directly or indirectly, in the business of providing by way of advice, consultancy, technical assistance or in any other manner, services related to planning, design or beautification of spaces, whether man-made or otherwise and includes a landscape designer;
(60) "leased circuit" means a dedicated link provided between two fixed locations for exclusive use of the subscriber and includes a speech circuit, a data circuit or a telegraph circuit;
(61) "life insurance business" has the meaning assigned to it in clause (11) of section 2 of the Insurance Act, 1938 (4 of 1938);
(62) "light motor vehicle" means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver;
(63) "magnetic storage device" includes wax blanks, discs or blanks, stripes or films for the purpose of original sound recording;
(64) "maintenance or
repair" means any service provided by -
(i) any person under a
maintenance contract or agreement; or
(ii) a manufacturer or any
person authorised by him, in relation to maintenance or repair or servicing of
any goods or equipment, excluding motor vehicles;
(65) "management consultant" means any person who is engaged in providing any service, either directly or indirectly, in connection with the management of any organisation in any manner and includes any person who renders any advice, consultancy or technical assistance, relating to conceptualising, devising, development, modification, rectification or up gradation of any working system of any organisation;
(66) 'mandap" means any
immovable property as defined in section 3 of the Transfer of Property Act,
1882 (4 of 1882) and includes any furniture, fixtures, light fittings and floor
coverings therein let out for a consideration for organising any official,
social or business function;
(67) "mandap
keeper" means a person who allows temporary occupation of do mandap for a
consideration for organising any official, social or business function;
(68) "manpower
recruitment agency" means any commercial concern engaged in providing any
service, directly or indirectly, in any manner for recruitment of manpower, to
a client,
(69) "market research
agency" means any commercial concern engaged in conducting market research
in any manner, in relation to any product, service or utility, including all
types of customised and syndicated research services;
(70) "maxicab" has
the meaning assigned to it in clause (22) of section 2 of the Motor Vehicles
Act, 1988 (59 of 1988);
(71) "motorcab" has
the meaning assigned to it in clause (25) of section 2 of the Motor Vehicles
Act, 1988 (59 of 1988);
(72) "motor car"
has the meaning assigned to it in clause (26) of section 2 of the Motor
Vehicles Act, 1988 (59 of 1988);
(73) "motor
vehicle" has the meaning assigned to it in clause (28) of section 2 of the
Motor Vehicels Act, 1988 (59 of 1988);
(74) "non-banking
financial company" has the meaning assigned to it in clause (f) of section
45-1 of the Reserve Bank of India Act, 1934 (2 of 1934);
(75) "on-line information
and database access or retrieval" means providing data or information,
retrievable or otherwise, to a customer, in electronic form through a computer
network;
1[(75A) "opinion
poll" means any service designed to secure information on public opinion
regarding social, economic, political or other issues,
(75B) "opinion poll
agency" means any person engaged in providing any service in relation to
opinion poll;]
(76) "other port"
has the meaning assigned to "port" in clause (4) of section 3 of the
Indian Ports Act, 1908 (15 of 1908), but does not include the port defined in
clause (80);
1[(76A) "outdoor caterer" means a caterer engaged in providing services in connection with catering at a place other than his own;]
(77) "pager" means
an instrument, apparatus or appliance which is a nonspeech, one way personal
calling system with alert and has-the capability of receiving, storing
and displaying numeric or alphanumeric messages;
2[(77A) "pandal or shamiana" means a place specially prepared or arranged for organising an official, social or business function;
(77B) "pandal or shamiana contractor" means a person engaged in providing any service, either directly or indirectly, in connection with the Preparation, arrangement, erection or decoration of a pandal or shamiana and includes the supply of furniture, fixtures, lights and lighting fittings, floor coverings and other articles for use therein;]
(78) "photography" includes still photography, motion picture photography laser photography, aerial photography or fluorescent photography;
(79) "photography studio or agency" means any professional photographer or a commercial concern engaged in the business of rendering service relating to photography;
(80) "policy holder" has the meaning assigned to it in clause (2) of section 2 of the Insurance Act, 1938 (4 of 1938);
(81) "port" has the meaning assigned to it in clause (q) of section 2 of the Major Port Trusts Act, 1963 (38 of 1963);
(82) "port service" means any service rendered by a port or other port or any person authorised by such port or other part, in any manner, in relation to a vessel or goods;
(83) "practising chartered accountant" means a person who is a member of the Institute of Chartered Accountants of India and is holding a certificate of practice granted under the provisions of the Chartered Accountants Act, 1949 (38 of 1949) and includes any concern engaged in rendering services in the field of chartered accountancy;
(84) "practising cost accountant" means a person who is a member of the Institute of Cost and Works Accountants of India and is holding a certificate of practice granted under the provisions of the Cost and Works Accountants Act, 1959 (23 of 1959) and includes any concern engaged in rendering services in the field of cost accountancy;
(85) "practising company secretary" means a person who is a member of the Institute of Company Secretaries of India and is holding a certificate of practice granted under the provisions of the Company Secretaries Act, 1980 (56 of 1980) and includes any concern engaged in rendering services in the field of company secretary-ship;
(86) "prescribed"
means prescribed by rules made under this Chapter;
1[86A) "programme" means any audio or visual matter, live or recorded, which is intended to be disseminated by transmission of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly through the medium of relay stations;
(86B) "programme producer" means a commercial concern which produces a programme on behalf of another person:]
(87) "rail travel agent" means any person engaged in providing any service connected with booking of passage for travel by rail; '
(88) "real estate agent" means a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting, of real estate and includes a real estate consultant;
(89) "real estate consultant" means a person who renders in any manner, either directly or indirectly, advice, consultancy or technical assistance, in relation to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate;
2[(89A) "recognised association" has the meaning assigned to it in clause (j) of section 2 of the Forward Contracts (Regulation) Act, 1952 (74 of 1952);
(89B) "registered association" has the meaning assigned to it in clause (j) of section 2 of the Forward Contracts (Regulation) Act, 1952 (74 of 1952);]
(90) "recognised stock exchange" has the meaning assigned to it in clause (f) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956);
(91) "rent-a-cab scheme operator" means any person engaged in the business of renting of cabs;
(92) "scientific or technical consultancy" means any advice, consultancy, or scientific or technical assistance, rendered in any manner, either directly or indirectly, by a scientist or a technocrat, or any science or technology institution or organisation, to a client, in one or more disciplines of science or technology;
(93) "securities" has the meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956);
(94) "security agency" means any commercial concern engaged in the business of rendering services relating to the security of any property, whether movable or immovable, or of any person, in any manner and includes the services of investigation, detection or verification, of any fact or activity, whether of a personal nature or otherwise, including the services of providing security personnel;
(95) "service tax" means tax leviable
under the provisions of this Chapter;
(96) "ship" means a
sea-going vessel and includes a sailing vessel;
(97) "shipping line" means any person who owns or charters a ship and includes an enterprise which operates or manages the business of shipping;
(98) "sound recording" means recording of sound on a magnetic storage device and includes editing thereof, in any manner;
(99) "sound recording studio or agency" means any commercial concern engaged in the business of rendering any service relating to sound recording;
(100) "steamer agent"
means any person who undertakes, either directly or indirectly,
(I) to perform any service
in connection with the ship's husbandry or dispatch including the rendering of
administrative work related thereto; or
(ii) to book, advertise or
canvass for cargo for or on behalf of a shipping line; or
(iii) to provide container
feeder services for or on behalf of a shipping line;
1[(101) "stock-broker" means a person, who has either made an application for registration or is registered as a stock-broker or sub-broker, as the case may be, in accordance with tire rules and regulations trade under the Securities and Exchange Board of India Act, 1992 (15 of 1992);]
(102) "storage and
warehousing" includes storage and warehousing services for goods including
liquids and gases but does not include any service provided for storage of
agriculture] produce2 or any service provided by a cold storage;
1[(103) ***]
(104) "subscriber"
means a person to whom any service of a telephone connection or a facsimile
(FAX) or a leased circuit or a pager or a telegraph or a telex has been
provided by the telegraph authority;
2[(104A) "survey and exploration of mineral" means geological, geophysical or other prospecting, surface or sub-surface surveying or map making service, in relation to location or exploration of deposits of mineral, oil or gas]
(105) "taxable service" means any
service provided, -
3(a) 4[to any person], by a stock-broker in
connection with the sale or purchase of securities listed on a recognised stock
exchange;
5(b) to a
subscriber, by the telegraph authority in relation to a telephone connection;
6(c) to a
subscriber, by the telegraph authority in relation to a pager;
7(d) to a
policy holder, by an insurer carrying on general insurance business in relation
to general insurance business;
8(e) to a
client, by an advertising agency in relation to advertisement, in any manner;
9(f) to a
customer, by a courier agency in relation to door-to-door
transportation of time-sensitive documents, goods or articles;
10(g) to a
client, by a consulting engineer in relation to advice, consultancy or
technical assistance in any manner in one or more disciplines of engineering 11[but not in the discipline of computer hardware
engineering or computer software engineering];
12(h) to a
client, by a custom house agent in relation to the entry or departure of
conveyances or the import or export of goods;
13(i) to a
shipping line, by a steamer agent in relation to a ship's husbandry or dispatch
or any administrative work related thereto as well as the booking, advertising
or canvassing of cargo, including container feeder services;
1(j) to a
client, by a clearing and forwarding agent in relation to clearing and
forwarding operations, in any manner;
2(k) to a
client, by a manpower recruitment agency in relation to the recruitment of
manpower, in any manner;
3(l) to a
customer, by an air travel agent in relation to the booking of passage for
travel by air,
4(m) to a
client, by a mandap keeper in relation to the use of mandap in any manner
including the facilities provided to the client in relation to such use and also
the services, if any, rendered as a caterer;
5(n) to any
person, by a tour operator in relation to a tour;
6(o) to any
person, by a rent-a-cab scheme operator in relation to the renting
of a cab;
7(p) to a
client, by an architect in his professional capacity, in any manner;
8(q) to a
client, by an interior decorator in relation to planning, design or
beautification of spaces, whether man-made or otherwise, in any manner;
9(r) to a
client, by a management consultant in connection with the management of any
organisation, in any manner;
10(s) to a
client, by a practising chartered accountant in his professional capacity, in
any manner;
11(t) to a
client, by a practising cost accountant in his professional capacity, in any
manner;
12(u) to a client,
by a practising company secretary in his professional capacity, in any manner;
1(v) to a
client, by a real estate agent in relation to real estate;
2(W) to a
client, by a security agency in relation to the security of any property or
person, by providing security personnel or otherwise and includes the provision
of services of investigation, detection or verification of my fact or activity;
3(x) to a
client, by a credit rating agency in relation to credit rating of any financial
obligation, instrument or security;
4(y) to a
client, by a market research agency in relation to market research of any
product, service or utility, in any manner;
5(z) to a
client, by an underwriter in relation to underwriting, in any manner;
6(za) to a
client, by a scientist or a technocrat, or any science or technology
institution or organisation, in relation to scientific or technical
consultancy;
7(zb) to a
customer, by a photography studio or agency in relation to photography, in any
manner;
8(zc) to a client,
by any commercial concern in relation to holding of a convention, in any
manner;
9(zd) to a
subscriber, by the telegraph authority in relation to a leased circuit;
10(ze) to a
subscriber, by the telegraph authority in relation to a communication through
telegraph;
11(zf) to a
subscriber, by the telegraph authority in relation to a communication through
telex;
12(Zg) to a
subscriber, by the telegraph authority in relation to a facsimile (FAX)
communication;
13(zh) to a
customer, by a commercial concern, in relation to on-line information and
database access or retrieval or both in electronic form through computer
network, in any manner,
1(zi) to a
client, by a video production agency in relation to video-tape
production, in any manner;
2(z,j) to a
client, by a sound recording studio or agency in relation to any kind of sound
recording;
3(zk) to a
client, by a broadcasting agency or organisation in relation to broadcasting in
any manner and, in the case of a broadcasting agency or organisation, having
its head office situated in any place outside India, includes service provided
by its branch office or subsidiary or representative in India or any agent
appointed in India or by any person who acts on its behalf in any manner,
engaged in the activity of selling of time slots for broadcasting of any
programme or obtaining sponsorships for programme or collecting the
broadcasting charges on behalf of the said agency or organisation.
Explanation.-For
the removal of doubts, it is hereby declared that so long as the radio or
television programme broadcast is received in India and intended for listening
or viewing, as the case may be, by the public, such service shall be a taxable
service in relation to broadcasting, even if the encryption of signals or
beaming thereof through the satellite might have taken place outside India;
4(zl) to a
policy holder or insurer, by an actuary, or intermediary or insurance
intermediary or insurance agent, in relation to insurance auxiliary services
concerning general insurance business;]
5[(zm) to a
customer, by a banking company or a financial institution including a non-banking
financial company, or any other body corporate or commercial concern, in
relation to banking and other financial services;]
6(zn) to any
person, by a port or any person authorised by the port, in relation to port
services, in any manner;
7(zo) to a
customer, by an authorised service station, in relation to any service or
repair of motor cars or two wheeled motor vehicles, in any manner;
8[(zp) * * *]
1(zq) to a
customer, by a beauty parlour in relation to beauty treatment;
2(zr) to any
person, by a cargo handling agency in relation to cargo handling services;
3(zs) 4[to any person, by a cable operator, including a
multisystem operator] in relation to cable services;
5(zt) to a
customer, by a dry cleaner in relation to dry cleaning,
6(zu) to a
client, by an event manager in relation to event management;
7(ZV) to any
person, by a fashion designer in relation to fashion designing;
8(zw) to any
person, by a health club and fitness centre in relation to health and fitness
services;
9(zx) to a
policy holder, by an insurer carrying on life insurance business 10[in relation to the risk cover in life insurance];
11(zy) to a policy
holder or insurer by an actuary, or intermediary or insurance intermediary or
insurance agent, in relation to insurance auxiliary services concerning life
insurance business,
12(ZZ) to a
customer, by a rail travel agent in relation to booking of passage for travel
by rail;
13(zza) to
any person, by a storage or warehouse keeper in relation to storage and
warehousing of goods;
14(zzb) to
a client, by a commercial concern in relation to business auxiliary service;
15(ZZC) to
any person, by a commercial training or coaching centre in relation to
commercial training or coaching;
16(zza) to
a customer, by a commissioning and installation agency in relation to 17[erection,] commissioning or installation;
1(zze) to a
franchisee, by the franchisor in relation to franchise;
2(ZZf) to any
person, by an internet cafe in relation to access of internet,
3(ZZg) to a
customer, by any person in relation to maintenance or repair;
4(zzh) to any
person, by a technical testing and analysis agency, in relation to technical
testing and analysis;
5(zzi) to any
person, by a technical inspection and certification agency, in relation to
technical inspection and certification;
6(ZZj) to a
customer, by an authorised service station, in relation to any service or
repair of any maxicab;
7(zzk) to a
customer, by a foreign exchange broker other than those brokers in relation to
banking and other financial services referred to in sub-clauses (zm) and
(zp);
8(zzl) to any
person, by other port or any person authorised by that port in relation to port
services, in any manner,
9[(zzm) to
any person, by airports authority or any person authorised by it, in an airport
or a civil enclave;
(zzn) to any person, by an
aircraft operator, in relation to transport of goods by aircraft,
(zzo) to an exhibitor, by the
organiser of a business exhibition, in relation to business exhibition,
(zzp) to a customer, by a goods
transport agency, in relation to transport Of goods by road in a goods
carriage,
(zzq) to any person, by a
commercial concern, in relation to construction service;
(zzr) to any person, by the
holder of intellectual property right, in relation to intellectual property
service;
(zzs) to any person, by an
opinion poll agency, in relation to opinion poll,
(zzt) to a client, by a outdoor
caterer;
(zzu) to any person, by a
programme producer, in relation to a programme;
(zzv) to a customer, by any
person, in relation to survey and exploration Of mineral,
(zzw) to a client, by a pandal or
shamiana contractor in relation to a pandal or shamiana in any manner and also
includes the services, if any, rendered as a caterer,
(zzx) to a customer, by a travel
agent, in relation to the booking of passage for travel;
(zzy) to any person, by a member
of a recognised association or a registered association, in relation to a
forward contract;]
and the term "service provider" shall be construed
accordingly;
(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 any testing or analysis service provided in relation to human beings or animals;
(107) "technical testing
and analysis agency" means any agency or person engaged in providing
service in relation to technical testing and analysis;
(108) "technical inspection
and certification" means inspection or examination of goods or process or
material or any immovable property to certify that such goods or process or material
or immovable property qualifies or maintains the specified standards, including
functionality or utility or quality or safety or any other characteristic or
parameters, but does not include any service in relation to inspection and
certification of pollution levels;
(109) "technical inspection
and certification agency" means any agency or person engaged in providing
service in relation to technical inspection and certification,
(110) "telegraph" has
the meaning assigned to it in clause (1) of section 3 of the Indian Telegraph
Act, 1885 (13 of 1885);
(111) "telegraph
authority" has the meaning assigned to it in clause (6) of section 3 of
the Indian Telegraph Act, 1885 (13 of 1885) and includes a person who has been
granted a licence under the first proviso to subsection (1) of section 4 of
that Act;
(112) "telex" means a
typed communication by using teleprinters through telex exchanges;
(113) "tour" means a
journey from one place to another irrespective of the distance between such
places;
(114) "tourist
vehicle" has the meaning assigned to it in clause (43) of section 2 of the
Motor Vehicles Act, 1988 (59 of 1988);
1[(115) "tour
operator" means any person engaged in the business of planning,
scheduling, organising or arranging tours which may include arrangements for
accommodation, sightseeing or other similar services) by any mode of transport,
and includes any person engaged in the business of operating tours in a tourist
vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of
1988) or the rules made there under:]
(115A) "travel agent"
means any person engaged in providing any service connected with booking of
passage for travel, but does not include air travel agent and rail travel
agent,]
(116) "underwriter"
has the meaning assigned to it in clause (f) of rule 2 of the Securities and
Exchange Board of India (Underwriters) Rules, 1993;
(117) "underwriting"
has the meaning assigned to it in clause (g) of rule 2 of the Securities and
Exchange Board of India (Underwriters) Rules, 1993;
(118) "vessel" has the
meaning assigned to it in clause (z) of section 2 of the Major Port Trusts Act,
1963 (38 of 1963);
(119) "video production
agency" means any professional videographer or any commercial concern
engaged in the business of rendering services relating to video-tape
production;
(120) "video-tape
production" means the process of any recording of any programme, event or
function on a magnetic tape and includes editing thereof, in any manner;
(121) words and expressions used
but not defined in this Chapter and defined in the Central Excise Act, 1944 (1
of 1944) or the rules made thereunder, shall apply, so far as may be, in
relation to service tax as they apply in relation to a duty of excise.]
1[65A. Classification
of taxable services
(1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clauses of clause (105) of section 65.
(2) Where for any reason, a
taxable service is, prima facie, classifiable under two or more sub-clauses
of clause (105) of section 65, classification shall be effected as follows:
(a) the sub-clause
which provides the most specific description shall be preferred to sub-clauses
providing a more general description;
(b) composite services
consisting of a combination of different services which cannot be classified in
the manner specified in clause (a), shall be classified as if they consisted of
a service which gives them their essential character, in so far as this
criterion is applicable;
(c) when a service cannot be
classified in the manner specified in clause (a) or clause (b) it shall be
classified under the sub-clause which occurs first among the sub-clauses
which equally merit consideration.]
2[66. Charge
of service tax
There
shall be levied a tax (hereinafter referred to as the service tax) at the rate
of ten per cent of the value of the taxable services referred to in sub-clauses
(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p),
(q), (r), (s), (t), (u), (v), (w), (x), (y), (z), (za), (zb), (zc), (zd), (ze),
(zo, (zg), (zh), (zi), (zj), (zk), (zl), (zm), (zn), (zo), (zq), (zr), (zs),
(zt), (zu), (zv), (zw), (zx), (zy), (zz), (zza), (zzb), (zzc), (zzd), (zze),
(zzf), (zzg), (zzh), (zzi), (zzj), (zzk), (zzl), (zzm), (zzn), (zzo), (zzp),
(zzq), (zzr), (zzs), (zzt), (zzu), (zzv), (zzw), (zzx) and (zzy) of clause
(105) of section 65 and collected in such manner as may be prescribed.]
1[67. Valuation
of taxable services for charging service tax
For the
purposes of this Chapter, the value of any taxable service shall be the gross
amount charged by the service provider for such service rendered by him.
Explanation
2[1].-For the removal of doubts, it is hereby
declared that the value of a taxable service, as the case may be, includes,
(a) 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;
(b) 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;
(c) the amount of premium
charged by the insurer from the policy holder;
(d) the commission received by the air travel agent from the
airline;
(e) the commission, fee or
any other sum received by an actuary, or intermediary or insurance intermediary
or insurance agent from the insurer; 3[* * *]
(f) the reimbursement received
by the authorised service station from manufacturer for carrying out any
service of any motor car 4[, light motor vehicle] or two wheeled motor vehicle
manufactured by such manufacturer; 5[and
(g) the commission or any
amount received by the rail travel
agent from the Railways or the customer]
1[but does
not include
(i) initial deposit made by
the subscriber at the time of application for telephone connection or pager or
facsimile (FAX) or telegraph or telex or for leased circuit;
(ii) the cost of unexposed
photography film, unrecorded magnetic tape or such other storage devices, if
any, sold to the client during the course of providing the service;
(iii) the cost of parts or
accessories, or consumable such as lubricants and coolants, if any, sold to the
customer during the course of service or repair of motor cars, light motor
vehicle or two wheeled motor vehicles;
(iv) the airfare collected by
air travel agent in respect of service provided by him;
(v) the rail fare collected
by rail travel agent in respect of service provided by him;
(vi) the cost of parts or
other material, if any, sold to the customer during the course of providing
maintenance or repair service; 2[* * *]
3[(vii) the cost of parts or other material, if any,
sold to the customer during the course of providing erection, commissioning or
installation service, and
(viii) interest on loans.]
4[Explanation
2.-Where the gross amount charged by a service provider is inclusive of
service tax payable, the value of taxable service shall be such amount as with
the addition of tax payable, is equal to the gross amount charged.]
(1) Every person providing
taxable service to any person shall pay service tax at the rate specified in
section 66 in such manner and within such period as may be prescribed.
(2) Notwithstanding anything
contained in sub-section (1), in respect of any taxable service notified
by the Central Government in the Official Gazette, the service tax thereon
shall be paid by such person and in such manner as may be prescribed at the
rate specified in section 66 and all the provisions of this Chapter shall apply
to such person a5 if he is the person liable for paying the service tax in
relation to such service.]
Every
person liable to pay the service tax under this Chapter or the rules made
thereunder shall, within such time and in such manner and in such form as may
be prescribed, make an application for registration to the 3[Superintendent
of Central Excise].]
Every
person liable to pay the service tax shall himself assess the tax due on the
services provided by him and shall furnish to the Superintendent of Central
Excise, a return in such form and in such manner and at such frequency as may
be prescribed.]
6[71. Verification
of tax assessed by the assessee, etc.***]
7[71
A. Filing of return by certain customers
Notwithstanding
anything contained in the provisions of sections 69 and 70, the provisions
thereof shall not apply to a person referred to in the proviso to sub-section
(1) of section 68 for the filing of return in respect of service tax for the
respective period and service specified therein and such person shall furnish
return to the Central Excise Officer within six months from the day on which
the Finance Bill, 2003 receives the assent of the President in the prescribed
manner on the basis of the self assessment of the service tax and the
provisions of section 71 shall apply accordingly.]
1[72. Best
judgment assessment***]
2[73. Recovery
of service tax not levied or paid or short-levied or short-paid or
erroneously refunded
(1) Mere any service tax has
not been levied or paid or has been short-levied or short-paid or
erroneously refunded, the Assistant Commissioner of Central Excise or, as the
case may be, the Deputy Commissioner of Central Excise may, within one year
from the relevant date, serve notice on the person chargeable with the service
tax which has not been levied or paid or which has been Short-levied or
short-paid or the person to whom such tax refund has erroneously been
made, requiring him to show cause why he should not pay the amount specified in
the notice:
Provided
that where any service tax has not been levied or paid or has been short
levied or short-paid or erroneously refunded by reason of
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement;
or
(d) suppression off acts; or
(e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax~
by the
person chargeable with the service tax or his agent, the provisions of this
subsection shall have effect, as if, for the words "one year", the
words "five years" had been substituted.
Explanation.
- Mere the service of the notice is stayed by an order of a court the
period of such stay shall be excluded in computing the aforesaid period of one
year or five years, as the case may be.
(2) The Assistant
Commissioner of Central Excise or, as the case may be, the Deputy Commissioner
of Central Excise shall, after considering the representation, if any, made by
the person on whom notice is served under sub-section (1), determine the
amount of service tax due from, or erroneously refunded to, such person (not
being in excess of the amount specified in the notice) and thereupon such
person shall pay the amount so determined.
(3) Mere any service tax has
not been levied or paid or has been short-levied or short-paid or
erroneously refunded, the person chargeable with the service tax, or the person
to whom such tax refund has erroneously been made, may pay the amount of such
service tax, chargeable or erroneously refunded, on the basis of his own
ascertainment thereof, or on the basis of tax ascertained by a Central Excise
Officer before service of notice on him under sub-section (1) in respect
of such service tax, and inform the Assistant Commissioner of Central Excise
or, as the case may be, the Deputy Commissioner of Central Excise Of such
payment in writing, who, on receipt of such information shall not serve any
notice under sub-section (1) in respect of the amount so paid:
Provided
that the Assistant Commissioner of Central Excise or, as the case may be, the
Deputy Commissioner of Central Excise may determine the amount of short payment
of service tax or erroneously refunded service tax, if any, which in his
opinion has not been paid by such person and, then, the Assistant Commissioner
of Central Excise or, as the case may be, the Deputy Commissioner of Central
Excise shall proceed to recover such amount in the manner specified in this
section, and the period of "one year" referred to in sub-section
(1) shall be counted from the date of receipt of such information of payment.
Explanation.
-For the removal of doubts, it is hereby declared that the interest under
section 75 shall be payable on the amount paid by the person under this
subsection and also on the amount of short payment of service tax or
erroneously refunded service tax, if any, as may be determined by the Assistant
Commissioner of Central Excise or, as the case may be, the Deputy Commissioner
of Central Excise, but for this sub-section.
(4) Nothing contained in sub-section
(3) shall apply to a case where any service tax has not been levied or paid or
has been short-levied or short-paid or erroneously refunded by
reason of
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement;
or
(d) suppression of facts; or
(e) contravention of any of
the provisions of this Chapter or of the rules made thereunder with intent to
evade payment of service tax.
(5) The provisions of sub-section
(3) shall not apply to any case where the service tax had become payable or
ought to have been paid before the 14th day of May 2003.
(6) For the purposes of this
section, "relevant date" means,
(i) in the case of taxable
service in respect of which service tax has not been levied or paid or has been
short-levied or short-paid
(a) where under the rules
made under this Chapter a periodical return, showing particulars of service tax
paid during the period to which the said return relates, is to be filed by an
assessee, the date on which such return is so filed;
(b) where no periodical
return as a aforesaid is filed, the last date on which such return is to be
filed under the said rules;
(c) in any other case, the
date on which the service tax is to be paid under this Chapter or the rules
inade thereunder,
(ii) in a case where the
service tax is provisionally assessed under this Chapter or the rules made
thereunder, the date of adjustment of the service tax after the final
assessment thereof;
(iii) in a case where any sum,
relating to service tax, has erroneously been refunded, the date of such
refund.]
(1) With a view to
rectifying any mistake apparent from the record, the 1[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] who passed any order under the provisions of this Chapter may,
within two years of the date on which such order was passed, amend the order.
(2) Where any matter has
been considered and decided in any proceeding by way of appeal or revision
relating to an order referred to in sub-section (1), the 2[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] passing order may, notwithstanding anything contained in any
law for the time being in force, amend the order under that sub-section
in relation to any matter other than the matter which has been so considered and
decided.
(3) Subject to the other
provisions of this section, the 3[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] concerned
(a) may make an amendment
under sub-section (1) of his own motion; or
(b) shall make such
amendment if any mistake is brought to his notice by the assessee or the 1[Commissioner]
of Central Excise or the 2[Commissioner]
of Central Excise (Appeals).
(4) An amendment, which has
the effect of enhancing 3[the
liability of the assessee or reducing a refund], shall not be made under this
section unless the 4[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] concerned has given notice to the assessee of his intention so to
do and has allowed the assessee a reasonable opportunity of being heard.
(5) Where an amendment is
made under this section, an order shall be passed in writing by the 5[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] concerned.
(6) Subject to the other
provisions of this Chapter where any such amendment has the effect of reducing
the 6[liability
of an assessee or increasing], the 7[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] shall make any refund which may be due to such assessee.
(7) Where any such amendment
has the effect of enhancing the 8[liability
of the assessee] or reducing the refund already made, the 9[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] shall make an order specifying the sum payable by the assessee
and the provisions of this Chapter shall apply accordingly.
10[75.
Interest on delayed payment of service tax
Every
person, liable to pay the tax in accordance with the provisions of section 68
or rules made thereunder, who fails to credit the tax or any part thereof to
the account of the Central Government within the period prescribed, shall pay
simple interest 11[at such
rate not below ten per cent and not exceeding thirty-six per cent per
annum, as is for the time being fixed by the Central Government, by
notification in the Official Gazette] for the period] by which such crediting
of the tax or any part thereof is delayed.]
1[75A. Penalty
for failure of registration.-*
2[76.
Penalty for failure to pay service tax
Any person, liable to pay service tax in accordance with the provisions
of section 68 or the rules trade thereunder, who fails to pay such tax shall
pay in addition to paying such tax, an interest on that tax in accordance with
the provisions of section 75, a penalty which shall not be less than one
hundred rupees 3[for every day during which such failure continues] but which may extend
to two hundred rupees for every day during which such failure continues, so,
however, that the penalty under this clause shall not exceed the amount of
service tax that he failed to pay.]
4[77. Penalty
for contravention of any provision for which no penalty is provided
Whoever
contravenes any of the provisions of this Chapter or any rule made
thereunderfor which no penalty is separately provided in this Chapter, shall be
liable to a penalty which may extend to an amount not exceeding one thousand
rupees.]
78. Penalty
for suppressing value of taxable service
5[Where any
service tax has not been levied or paid or has been short-levied or short-paid
or erroneously refunded, by reason of
(a) fraud, or
(b) collusion, or
(c) willful mis-statement;
or
(d) suppression of facts, or
(e) contravention of any of
the provisions of this Chapter or the rules made thereunder with intent to
evade payment of service tax,
the
person, liable to pay such service tax or erroneous refund, as determined under
sub-section (2) of section 73, shall also be liable to pay a penalty~ in
addition to such service tax and interest thereon, if any, payable by him,
which shall not be less than, but which shall not exceed twice, the amount of
service tax so not levied or paid or short-levied or short-paid or
erroneously refunded:]
1[Provided
that where such service tax as determined under sub-section (2) of
section 73, and the interest payable thereon under section 75, is paid within
thirty days from the date of communication of order of the Assistant
Commissioner of Central Excise or, as the case may be, the Deputy Commissioner
of Central Excise determining such service tax, the amount of penalty liable to
be paid by such person under this section shall be twenty-five per cent
of the service tax so determined:
Provided
further that the benefit of reduced penalty under the first proviso shall be
available only if the amount of penalty so determined has also been paid within
the period of thirty days referred to in that proviso:
Provided
also that where the service tax determined to be payable is reduced or
increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case
may be, the court, then, for the purposes of this section, the service tax as
reduced or increased, as the case may be, shall be taken into account:
Provided
also that in case where the service tax determined to be payable is increased
by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be,
the court, then, the benefit of reduced penalty under the first proviso shall
be available, if the amount of service tax so increased, the interest payable
thereon and twenty-five per cent of the consequential increase of penalty
have also been paid within thirty days of communication of the order by which
such increase in service tax takes effect.
Explanation. -For the removal of doubts, it is hereby declared
that
(1) the provisions of this
section shall also apply to cases in which the order determining the service
tax under sub-section (2) of section 73 relates to notices issued prior
to the day on which the Finance Bill, 2003 receives the assent of the
President,
(2) any amount paid to the
credit of the Central Government prior to the date of communication of the
order referred to in the first proviso or the fourth proviso shall be adjusted
against the total amount due from such person.]
1[79. Penalty
for failure to comply with notice.
80. Penalty
not to be imposed in certain cases .
Notwithstanding
anything contained in the provisions of section 76, 2[section
77 or section 78], no penalty shall be impossible on the assessee for any
failure referred to in the said provisions if the assessee proves that there
was reasonable cause for the said failure.
3[81. Offences
by companies.-***]
(1) If the 4[Commissioner
of Central Excise] has reason to believe that any documents or books or things
which in his opinion will be useful for or relevant to any proceeding under
this Chapter are secreted in any place, he may authorise any 1[* * *] 2[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] 3[to search
for and seize or may himself search for and seize, such documents or books or
things].
(2) The provisions of the
Code of Criminal Procedure, 1973 (2 of 1974), relating to searches, shall, so
far as may be, apply to searches under this section as they apply to searches
under that Code.
83. Application of certain provisions of Act
1 of 1944
The
provisions of the following sections of the 4[Central
Excises Act, 1944] (1 of 1944), as in force from time to time, shall apply, so
far as may be, in relation to service tax as they apply in relation to a duty
of excise:
9C, 9D,
11, 11B, 5[11BB, 6[11C, 11D,
12,] 12A] 12B, 12C, 12D, 12E, 14, 15, 35F to 350 (both inclusive), 35Q, 36,36A,
36B, 37A, 37B, 37C, 37D and 40.
84.
Revision of orders by the 7[Commissioner] of Central Excise
(1) The 8[Commissioner]
of Central Excise may call for the record of a proceeding under this Chapter
which has been taken by the 9[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] and may make such inquiry or cause such inquiry to be made and,
subject to the provisions of this Chapter, pass such order thereon as he thinks
fit.
(2) No order which is
prejudicial to the assessee shall be passed under this section unless the
assessee has been given an opportunity of being heard.
(3) The 10[Commissioner]
of Central Excise shall communicate the order passed by him under sub-section
(1) to the assessee, the 11[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] and the Board.
(4) No order under this
section shall be passed by the 12[Commissioner]
of Central Excise in respect of any issue if an appeal against such issue is
pending before the 13[Commissioner]
of Central Excise (Appeals).
(5) No order under this
section shall be passed after the expiry of two years from the date on which
the order sought to be revised has been passed.
85.
Appeals to the 1[Commissioner] of Central Excise (Appeals)2
(1) Any person aggrieved by
any assessment order passed by the 3[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise] under 4[* * *]
section 73, or denying his liability to be assessed under this Chapter, or by
an order levying interest or penalty 5[or
denying any refund of service tax under this Chapter, may appeal to the 6[Commissioner]
of Central Excise (Appeals).
(2) Every appeal shall be in
the prescribed form and shall be verified in the prescribed manner.
(3) An appeal shall be
presented within three months from the date of receipt of the decision or order
of the 7[Assistant
Commissioner of Central Excise or, as the case may be, Deputy Commissioner of
Central Excise], relating to service tax, interest or penalty under this
Chapter:
Provided
that the 8[Commissioner]
of Central Excise (Appeals) may, if he is satisfied that the appellant was
prevented by sufficient cause from presenting the appeal within the aforesaid
period of three months, allow it to be presented within a further period of
three months.
(4) The 9[Commissioner]
of Central Excise (Appeals) shall hear and determine the appeal and, subject to
the provisions of this Chapter, pass such orders as he thinks fit and such
orders may include an order enhancing the service tax, interest or penalty:
Provided
that an order enhancing the service tax, interest or penalty shall not be made
unless the person affected thereby has been given a reasonable opportunity of
showing cause against such enhancement.
(5) Subject to the
provisions of this Chapter, in hearing the appeals and making orders under this
section, the 10[Commissioner]
of Central Excise (Appeals) shall exercise the same powers and follow the same
procedure as he exercises and follows in hearing the appeals and making orders
under the 11[Central
Excises Act, 1944] (1 of 1944).
86.
Appeals to Appellate Tribunal1
(1) Any assessee aggrieved
by an order passed by a 2[Commissioner]
of Central Excise under section 84, or an order passed by a 3[Commissioner]
of Central Excise (Appeals) under section 85, may appeal to the Appellate
Tribunal against such order.
4[(2) The Board may, if it objects to any order
passed by the Commissioner of Central Excise under section 84, direct the
Commissioner of Central Excise to appeal to the Appellate Tribunal against the
order.
(2A) The Commissioner of
Central Excise may, if he objects to any order passed by the Commissioner of
Central Excise (Appeals) under section 85, direct the Assistant Commissioner of
Central Excise or, as the case may be, Deputy Commissioner of Central Excise to
appeal to the Appellate Tribunal against the order.]
(3) Every appeal under sub-section
(1) or sub-section (2) 5[or sub-section
(2A)] shall be filed within three months of the date on which the order sought
to be appealed against is received by the assessee, the Board or by the 6[Commissioner]
of Central Excise, as the case may be.
(4) 7[The
Commissioner of Central Excise or Assistant Commissioner of Central Excise or
Deputy Commissioner of Central Excise or the assessee, as the case may be, on
receipt of a notice that an appeal against the order of the Commissioner of
Central Excise or the Commissioner of Central Excise (Appeals) has been
preferred under sub-section (1) or sub-section (2) or sub-section
(2A)] by the other party may, notwithstanding that he may not have appealed against
such order or any part thereof, within forty-five days of the receipt of
the notice, file a memorandum of cross-objections, verified in the
prescribed manner, against any part of the order of the 8[Commissioner]
of Central Excise or the 9[Commissioner]
of Central Excise (Appeals), and such memorandum shall be disposed of by the
Appellate Tribunal as if it were art appeal presented within the time specified
in sub-section (3).
(5) The Appellate Tribunal
may admit an appeal or permit the filing of a memorandum of cross-objections
after the expiry of the relevant period referred to in sub-section (3) or
sub-section (4) if it is satisfied that there was sufficient cause for
not presenting it within that period.
1[(6) An appeal to the Appellate Tribunal shall
be in the prescribed form and shall be verified in the prescribed manner and
shall, irrespective of the date of demand of service tax and interest or of
levy of penalty in relation to which the appeal is made, be accompanied by a
fee of,
(a) where the amount of
service tax and interest demand and penalty levied by any Central Excise
Officer in the case to which the appeal relates is five l4kh rupees or less,
one thousand rupees,
(b) where the amount of
service tax and interest demanded and penalty levied by any Central Excise
Officer in tire case to which the appeal relates is more than five lakh rupees
but not exceeding fifty lakh rupees, five thousand rupees.
(c) where the amount of
service tax and interest demanded and penalty levied by any Central Excise
Officer in the case to which the appeal relates is more than fifty lakh rupees,
ten thousand rupees:
Provided
that no fees shall be payable in the case of an appeal referred to in
subsection (2) or sub-section (2A) or a memorandum of cross-objections
referred to in subsection (4).
(6A) Every application made
before the Appellate Tribunal,
(a) in an appeal for grant
of stay or for rectification of mistake or for any other purpose, or
(b) for restoration of an
appeal or an application, shall be accompanied by a fee of five hundred rupees:
Provided that no such fee shall be payable in the case of an application
filed by the
Commissioner
of Central Excise or Assistant Commissioner of Central Excise or Deputy
Commissioner of Central Excise, as the case may be, under this sub-section.]
(7) Subject to the
provisions of this Chapter, in hearing the appeals and making orders under this
section, the Appellate Tribunal shall exercise the same powers and follow the
same procedure as it exercises and follows in hearing the appeals and making
orders under the 2[Central
Excises Act, 1944] (1 of 1944).
[87. Wilful
attempt to evade service tax, etc. - Omitted by the Finance (No. 2)
Act, 1998, w.e.f. 16-10-1998.]
[88. Failure to furnish prescribed returns. -Omitted by the Finance (No. 2)
Act, 1998, w.e.f. 16-10-1998.]
[89.
False statement in verification,
etc. -
Omitted by the Finance (No. 2) Act, 7998, w.e.f. 16-10-1998.]
[90.
Abetment of false return, etc.
- Omitted by the Finance (No. 2) Act, 1998, w.e.f. 16-10-1998.]
[91. Certain
offences to be non-cognizable. -Omitted by
the Finance (No. 2) Act, 1998, w.e.f. 16-10-1998.]
[92.
Institution of
proceedings. -Omitted by the Finance (No. 2)
A&, 1998, w.e.f. 16-10-1998.]
1[93. Power
to grant exemption from service tax
(1) If the Central
Government is satisfied that it is necessary in public interest so to do, it
may, by notification in the Official Gazette, exempt generally or subject to
such conditions as may be specified in the notification, taxable service of any
specified description from the whole or any part of the service tax leviable
thereon.
(2) If the Central
Government is satisfied that it is necessary in the public interest so to do,
it may, by special order in each case, exempt any taxable service of any
specified description from the payment of whole or any part of the service tax
leviable thereon, under circumstances of exceptional nature to be stated in
such order.]
(1) The Central Government
may, by notification in the Official Gazette, make rules for carrying out the
provisions of this Chapter.
2[(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may provide for all or any of the
following matters, namely:
(a) collection and recovery of service tax
under sections 66 and 68;
(b) the time and mariner and
the form in which application for registration shall be made under section 69;
(c) the form, manner and frequency of the
returns to be furnished under section 70;
(d) the form in which appeal
under section 85 or under sub-section (6) of section 86 may be filed and
the manner in which they may be verified;
(e) the manner in which the
memorandum of cross objections under subsection (4) of section 86 may be
verified;
3[(ee) the credit of service tax paid on the
services consumed for providing a taxable service in case where the services
consumed and the service provided fall in the same category of taxable
service;]
4[(eee) the credit of service tax paid on the services
consumed or duties paid or deemed to have been paid on goods used for providing
a taxable services:]
5[(f) provisions for determining export of
taxable services;
(g) grant of exemption to,
or rebate of service tax paid on, taxable services which are exported out of
India;
(h) rebate of
service tax paid or payable on the taxable services consumed or duties paid or
deemed to have been paid on goods used for providing taxable services which are
exported out of India,
1[(i)] any other matter which by this Chapter is to
be or may be prescribed.]
(3) The power to make rules
conferred by this section shall on the first occasion of the exercise thereof
include the power to give retrospective effect to the rules or any of them from
a date not earlier than the date on which the provisions of this Chapter come
into force.
(4) Every rule made under
this Chapter and every notification issued under section 93 shall be laid, as
soon as may be, after it is made or issued, before each House of Parliament,
while it is in session for a total period of thirty days which may be comprised
in one session or in two or more successive sessions, and if, before the expiry
of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or
notification or both Houses agree that the rule should not be made or the
notification should not be issued, the rule or notification shall thereafter
have effect only in such modified form or be of no effect, as the case may be;
so, however, that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule or notification.
2[95. Power
to remove difficulty in implementing new services
(1) If any difficulty arises
in respect of implementing, or assessing the value of, any taxable service
incorporated in this Chapter by the Finance Act, 2002, the Central Government
may, by order published in the Official Gazette, which is not inconsistent with
the provisions of this Chapter, remove the difficulty:
Provided
that no such order shall be made after the expiry of a period of two years from
the date on which the provisions of the Finance Act, 2002 incorporating such
taxable services in this Chapter come into force.
3[(1A) If any difficulty arises in respect of
implementing, or assessing the value of, any taxable service incorporated in
this Chapter by the Finance Act, 2003, the Central Government may, by order
published in the Official Gazette, not inconsistent with the provisions of this
Chapter, remove the difficulty:
Provided
that no such order shall be made after the expiry of a period of two years from
the date on which the provisions of the Finance Act, 2003 incorporating such
taxable services in this Chapter come into force.]
4[(1B) If any difficulty arises in respect of
implementing, or assessing the value of any taxable service incorporated in
this Chapter by the Finance (No. 2) Act, 2004, the Central Government may, by
order published in the Official Gazette, not inconsistent with the provisions
of this Chapter, remove the difficulty:
Provided
that no such order shall be made after the expiry of a period of two years from
the date on which the Finance (No. 2) Bill, 2004 receives the assent of the
President.]
(2) Every order made under
this section shall be laid, as soon as may be after it is made, before each
House of the Parliament.]
In the
Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974), in
the Schedule, after entry 7 relating to the 1[Central
Excises Act, 1944] (1 of 1944), the following entry shall be inserted, namely:
“7A Chapter V of the Finance Act, 1994.".
2[Chapter
VA
In this Chapter, unless the context otherwise requires,
(a) "advance
ruling" means the determination, by the Authority of a question of law or
fact specified in the application regarding the liability to pay service tax in
relation to a service proposed to be provided, by the applicant;
(b) "applicant"
means -
(i) a non-resident
setting up a joint venture in India in collaboration with a non-resident
or a resident; or
(ii) a resident setting up a
joint venture in India in collaboration with a non-resident; or
(iii) a wholly owned
subsidiary Indian company, of which the holding company is a foreign company,
who proposes to undertake any business activity in India and makes
application for advance ruling;
(c) "application"
means an application made to the Authority under subsection (1) of section 96C;
(d) "Authority"
means the Authority for Advance Rulings constituted under section 28F of the
Customs Act, 1962 (52 of 1962);
(e) "non-resident",
"Indian company" and "foreign company" have the meanings
respectively assigned to them in clauses (30), (26) and (23A) of section 2 of
the Income-tax Act, 1961 (43 of 1961);
(f) words and expressions used but not defined in this Chapter and defined in the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder shall apply, so far as may be, in relation to service tax as they apply in relation to duty of excise.
96B.
Vacancies, etc., not invalidate
proceedings. -No proceeding before, or pronouncement of advance ruling by,
the Authority under this Chapter shall be questioned or shall be invalid on the
ground merely of the existence of any vacancy or defect in the constitution of
the Authority.
96C. Application
for advance ruling.-(1) An applicant desirous of obtaining an
advance ruling under this Chapter may make an application in
such form and in such manner as may be prescribed, stating the question on
which the advance ruling is sought.
(2) The question on which
the advance ruling is sought shall be in respect of,
(a) classification of any
service as a taxable service under Chapter V;
(b) the valuation of taxable
services for charting service tax;
(c) the principles to be
adopted for the purposes of determination of value of the taxable service under
the provisions of Chapter V;
(d) applicability of
notifications issued under Chapter V;
(e) admissibility of credit
of service tax.
(3) The application shall be
made in quadruplicate and be accompanied by a fee of two thousand five hundred
rupees.
(4) An applicant may
withdraw an application within thirty days from the date of the application.
96D. Procedure
on receipt of application. - (1)
On receipt of an application, the Authority shall cause a copy
thereof to be forwarded to the Commissioner of Central Excise and, if
necessary, call upon him to furnish the relevant records:
Provided
that where any records have been called for by the Authority in any case, such
records shall, as soon as possible, be returned to the Commissioner of Central
Excise.
(2) The Authority may,
after examining the application and the records called for, by order, either
allow or reject the application:
Provided
that the Authority shall not allow the application where the question raised in
the application is, -
(a) already pending in the
applicant's case before any Central Excise Officer, the Appellate Tribunal or
any Court,
(b) the same as in a matter
already decided by the Appellate Tribunal or any Court:
Provided
further that no application shall be rejected under this sub-section
unless an opportunity has been given to the applicant of being heard:
Provided
also that where the application is rejected, reasons for such rejection shall
be given in the order.
(3) A copy of every order made under sub-section
(2) shall be sent to the applicant and to the 0 Commissioner
of Central Excise.
(4) Where an application is
allowed under sub-section (2), the Authority shall, after examining such
further material as may be placed before it by the applicant or obtained by the
Authority, pronounce its advance ruling on the question specified in the
application.
(5) On a request received
from the applicant, the Authority shall, before pronouncing its advance ruling,
provide an opportunity to the applicant of being heard, either in person or
through a duty authorised representative.
Explanation.
-For the purposes of this sub-section, "authorised
representative" has the meaning assigned to it in sub-section (2) of
section 35Q of the Central Excise Act, 1944 (1 of 1944).
(6) The authority shall
pronounce its advance ruling in writing within ninety days of the receipt of
application.
(7) A copy of the advance
ruling pronounced by the Authority, duly signed by the Members and certified in
the prescribed manner shall be sent to the applicant and to the Commissioner of
Central Excise, as soon as may be, after such pronouncement.
96E. Applicability
of advance ruling. - (1) The
advance ruling pronounced by the Authority under section 96D shall
be binding only
(a) on the applicant who had sought it;
(b) in respect of any matter
referred to in sub-section (2) of section 96C;
(c) on the Commissioner of
Central Excise, and the Central Excise authorities subordinate to him, in
respect of the applicant.
(2) The advance ruling
referred to in sub-section (1) shall be binding as aforesaid unless there
is a change in law or facts on the basis of which the advance ruling has been
pronounced.
96F. Advance
ruling to be void in certain circumstances, - (1)
Where the Authority finds, on a representation made to it by the
Commissioner of Central Excise or otherwise, that an advance ruling pronounced
by it under sub-section (4) of section 96D has been obtained by the
applicant by fraud or misrepresentation of facts, it may, by order, declare
such ruling to be void ab initio and thereupon all the provisions of this
Chapter shall apply (after excluding the period beginning with the date of such
advance ruling and ending with the date of order under this sub-section)
to the applicant as if such advance ruling had never been made.
(2) A copy of the order made
under sub-section (1) shall be sent to the applicant and the Commissioner
of Central Excise.
96G. Powers
of Authority.-(1)
The Authority shall, for the purpose of exercising its powers regarding discovery
and inspection, enforcing the attendance of any person and examining him on
oath, issuing commissions and compelling production of books of account and
other records, have all the powers of a civil court under the Code of Civil
Procedure, 1908 (5 of 1908).
(2) The Authority shall be
deemed to be a civil court for the purposes of section 195, but not for the
purposes of Chapter XXVI of the Code of Criminal
Procedure,
1973 (2 of 1974) and every proceeding before the Authority shall be deemed to
be a judicial proceeding within the meaning of sections 193 and 228, and for
the purpose of section 196 of the Indian Penal Code (45 of 1860).
96H. Procedure
of Authority.-The
Authority shall, subject to the provisions of this Chapter, have power to regulate
its own procedure in all matters arising out of the exercise of its powers
under this Act.
96-I. Power
of Central Government to make rules.-(1)
The Central Government may, by
notification in the Official Gazette, make rules for carrying out the
provisions of this Chapter.
(2) In particular, and
without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:
(a) the form and manner for
making application under sub-section (1) of section 96C;
(b) the manner of certifying
a copy of advance ruling pronounced by the Authority under sub-section
(7) of section 96D;
(c) any other matter which,
by this Chapter, is to be or may be prescribed.
(3) Every rule made under
this Chapter shall be laid, as soon as may be, after it is made, before each House
of Parliament, while it is in session for-a total period of thirty days
which may be comprised in one session or in two or more successive sessions,
and if, before the expiry of the session immediately following the session or
the successive sessions aforesaid, both Houses agree in making any modification
in the rule or both Houses agree that the rule should not be made, the rule
shall thereafter have effect only in such modified form or be of no effect, as
the case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.]
[K1]In exercise of the powers conferred by sub-section (2) of section 64 of the Finance Act, 1994 (32 of 1994), the Central Government hereby appoints the 1st day of July, 1994, as the date on which Chapter V of the said Act shall come into force. Notification No. 1/94 Service Tax [GSR No. 545(E) [F. No. 137/1/94-CX.4)], dated 28-6-1994, issued by the Government of India, Ministry of Finance, Department of Revenue. (Published in Part 11, section 3, sub-section (i) of the Gazette of India, Extraordinary, dated the 28-6-1994).
[K2]Substituted by the Finance Act, 2003, w.e.f. 14-5-2003.
[K3]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K4]Substituted by the Finance
(No. 2) Act, 2004. w.e.f. 10-9-2004 for the following:
"(12)
"banking and other financial service" means -
(a) the
following services provided by a banking company or a financial institution
including a non-banking financial company or any other body corporate,
namely:
(i) financial leasing services including
equipment leasing and hire purchase by a body corporate;
(ii) credit card services~
(iii) merchant banking services;
(iv) securities and foreign exchange (forex)
booking;
(v) asset management
including portfolio management, all forms of fund management. pension fund
management, custodial, depository and trust services, but does not include cash
management;
(vi) advisory and other
auxiliary financial services including investment
and portfolio research and advice, advice on mergers and acquisitions and
advice on corporate restructuring and strategy: and
(vii) provision and transfer
of information and data processing;
(b) foreign exchange broking provided by a foreign exchange broker other than those covered under sub-clause (a);"
[K5]Substituted by the Finance
(No. 2) Act, 2004, 10.9-2004 for the following:
"(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.
Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this clause "information technology service" means any service in relation to designing, developing or maintaining of computer software, or computerized data processing or system networking or any other service primarily in relation to operation of computer systems;"
[K6]Inserted
by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K7]Clause
(28) omitted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
Prior to the omission, clause (28) read as under:
"(28) "commissioning or installation" means any service provided by a commissioning and installation agency in relation to commissioning or installation of plant, machinery or equipment;"
[K8]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K9]Inserted, ibid.
[K10]Inserted by the Finance (No. 2) Act, 2004, w.ef. 10.9-2004.
[K11]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10.9-2004.
[K12]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K13]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K14]Inserted by the Finance (No. 2) Act, 2004. w.e.f. 10-9-2004.
[K15]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K16]Ibid.
[K17]Inserted by the Finance (No. 2) Act, 2004. w.e.f. 10-9-2004.
[K18]Ibid
[K19]Substituted by the Finance
(No. 2) Act, 2004, w.e.f. 10.9-2004.for the following:
"(101) "stock-broker" means a stock-broker who has either made an application for registration or is registered as a stock-broker in accordance with the rules and regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992);"
[K20]The expression "agricultural produce" means any produce resulting from cultivation or plantation. on which either no further processing is done or such processing is done by the cultivator like tending, pruning, cutting, harvesting, drying which does not alter its essential characteristics but make it only marketable and includes all cereals, pulses, fruits nuts and vegetables, spices, copra, sugar cane, jaggery, raw vegetable fibres such as cotton. flax, jute, etc., indigo, unmanufactured tobacco, betel leaves, tendu leaves, rice, coffee and tea but does not include manufactured products such as sugar, edible oils, processed food, processed tobacco, [Service Tax (Removal of Difficulty) October, 2002 Order No. 1/2002-ST, dated 1-8-2002]
[K21]Omitted by the Finance (No.
2) Act, 2004, w.e.f. 10-9-2004. Prior to omission, clause (103) mad
as under:
"(103) "sub-broker" means a sub-broker who has either made an application for registration or is registered as a sub-broker in accordance with the rules and regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992):"
[K22]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10.9-2004.
[K23]1st July. 1994, vide Notification No. 1194-ST, dated 28-6-1994.
[K24]Substituted for the words "to an investor" by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K25]1st July, 1994, vide Notification No. 1/94-ST, dated 28-6-1994.
[K26]Ibid.
[K27]1st November, 1996, vide Notification No. 6/96-ST, dated 31-10-1996.
[K28]Ibid.
[K29]Ibid.
[K30]7th July, 1997, vide Notification No. 23/97-ST, dated 2-7-1997.
[K31]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10.9-2004.
[K32]15th June, 1997, vide Notification No. 17/97-ST, dated 6-6-1997.
[K33]Ibid.
[K34]15th June, 1997, vide Notification No. 17/97-ST, dated 6-6-1997.
[K35]7th July, 1997, vide Notification No. 23/97-ST, dated 2-7-1997.
[K36]1st July, 1997, vide Notification No. 19/97-ST, dated 26-6-1997.
[K37]1st July, 1997, vide Notification No. 19/97-ST, dated 26-6-1997.
[K38]1st September, 1997, ride Notification No. 37/97-ST, dated 22-8-1997. Tour operators had been exempted from the whole of the service tax leviable thereon under section 66 upto and inclusive of 31-3-2000: Notification No. 52/98, dated 18-7-1998.
[K39]16th July, 1997, vide Notification No. 26/97-ST, dated 11-7-1997. The rent-a-cab scheme operators had been exempted from the whole of service tax leviable thereon under section 66 upto and inclusive of 31-3-2000: Notification No. 3/99-ST, dated 28-2-1999,
[K40]16th October, 1998, vide Notification No. 53/98-ST, dated 7-10-1998.
[K41]Ibid.
[K42]Ibid.
[K43]Ibid.
[K44]Ibid.
[K45]Ibid.
[K46]16th July, 2001, vide Notification No. 4/2001-ST, dated 9-7-2001.
[K47]Ibid.
[K48]Ibid.
[K49]Ibid.
[K50]Ibid.
[K51]Ibid.
[K52]Ibid.
[K53]Ibid.
[K54]Ibid.
[K55]Ibid.
[K56]Ibid.
[K57]Ibid.
[K58]Ibid.
[K59]16th July, 2001, vide Notification No. 4/2001-ST, dated 9-7-2001.
[K61]Ibid.
[K62]16th August, 2002, vide Notification No. 8/2002-ST, dated 1-8-2002.
[K63]Substituted by the Finance
(No. 2) Act, 2004, w.e.f. 10.9-2004, for the following:
"(Zm) to a customer, by a banking company or a financial institution including a non banking financial company, in relation to banking and other financial services;"
[K64]16th August, 2002, vide Notification No. 8/2002-ST, dated 1-8-2002.
[K65]16th August, 2002, vide Notification No. 8/2002-ST, dated 1-8-2002.
[K66]Omitted by the Finance (No.
2) Act, 2004, w.e.f. 10.9-2004. Prior to omission, clause (zp), read as
under:
"(zp) to a customer, by a body corporate other than the body corporate referred to in sub clause (zm), in relation to banking and other financial services;"
[K67]16th August, 2002, vide Notification No. 8/2002-ST, dated 1-8-2002.
[K68]Ibid.
[K69]Ibid.
[K70]Substituted for the words "to a customer, by a cable operator" by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K71]16th August, 2002, vide Notification No. 8/2002-ST, dated 1-8-2002.
[K72]Ibid.
[K73]Ibid.
[K74]Ibid.
[K75]Ibid.
[K76]Substituted for the words "in relation to life insurance business" by the Finance (No. 2) Act, 2004. w.e.f. 10-9-2004.
[K77]16th August, 2002, Ode Notification No. 8/2002-ST, dated 1-8-2002.
[K78]Ibid.
[K79]Ibid.
[K80]1st July, 2003 vide Notification No, 7/2003-ST, dated 20-6-2003.
[K81]1st July, 2003 vide Notification No. 7/2003-ST, dated 20-6-2003.
[K82]Ibid.
[K83]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10.9-2004.
[K84]1st July, 2003 vide Notification No. 7/2003-ST, dated 20-6-2003.
[K85]Ibid.
[K86]Ibid.
[K87]Ibid.
[K88]Ibid.
[K89]Ibid.
[K90]Ibid.
[K91]Ibid.
[K92]Inserted by the Finance (No. 2) Act, 2004, w.ef. 10.9-2004.
[K93]Substituted by the Finance
(No. 2) Act, 2004, w.ef. 10-9-2004 for the following:
"(115) "tour operator" means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made thereunder;"
[K94]Inserted by the Finance Act, 2003, w.e.f. 14-5-2003.
[K95]Substituted by the Finance
(No. 2) Act, 2004, w.e.f. 10-9-2004 for the following section, as
substituted by the Finance Act, 2003, w.e.f. 14-5-2003:
"66 Charge of service There shall be levied a tax (hereinafter
referred to as the service tax) at the rate of eight per cent of the value of
the taxable services referred to in sub-clauses (a), (b), (c), (d), (e),
(f), (g), (h), (i), (j), (k), (l). (m), (n), (o), (p), (q), (r), (s), (t), (u),
(v), (w), (x), (y), (z), (za), (zb), (zc), (zd), (ze), (zf), (zg), (zh), (zi),
(zj), (zk), (zl), (zm), (zn), (zo), (zp), (zq), (zr), (zs), (zo, (zu), (zv),
(zw), (zx), (zy), (zz) and (zza) of clause (105) of section 65 and collected in
such manner as may be prescribed.
(2) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be levied a service tax at the rate of eight per cent of the value of the taxable services referred to in sub-clauses (zzb), (zzc), (zzd), (zze), (zzf), (zzg), (zzh), (zzi), (zzj), (zzk) and (zzl) of clause (105) of section 65 and collected in such manner as ma ' v be prescribed."
[K96] Substituted by the Finance Act, 2001, w.e.f. 16-7-2001.
[K97]Explanation renumbered as Explanation I by the Finance (No. 2) Act, 2004, w.e.f. 10.9-2004.
[K98]The word "and" omitted by the Finance Act, 2002, w.e.f. 16-8-2002.
[K99]Inserted by the Finance Act, 2003, w.e.f 14-5-2003.
[K100]Inserted by the Finance Act, 2002, w.e.f. 16-8-2002.
[K101]Substituted
for the following by the Finance Act, 2003, w.e.f. 14-5-2003:
"but
does not include, -
(a) 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;
(b) the cost of unexposed
photography film, unrecorded magnetic tape or such other storage devices if
any, sold to the client during the course of providing the service:
(c) the cost of parts or
accessories, if any, sold to the customer during the course of service or
repair of motor cars or two wheeled motor vehicles;
(d) the airfare collected by air travel
agent in respect of service provided by him; and
(e) the rail fare collected by rail travel agent in respect of service provided by him."
[K102]The word "and" omitted by the Finance (No. 2) Act, 2004. w.e.f. 10.9-2004.
[K103]Clauses
(vii) and (viii) substituted by the Finance (No. 2) Act. 2004, w.e.f. 10-9-2004
for the following:
(vii) the cost of parts or other material. if any, sold to the customer during the come of providing commissioning or installation service.]
[K104]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K105]Section 68 substituted by the Finance (No. 2) Act, 1998, w.e.f. 16-10-1998.
[K106]See rule 6 of Service Tax Rules. 1994.
[K107]Section 69 substituted by the Finance (No. 2) Act, 1998, w.e.f 16-10-1998.
[K108]See Rule 4 and Form Nos. ST-1 and ST-2 of Service Tax Rules, 1994.
[K109]Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K110]Substituted by the Finance Act, 2001, w.e.f. 16-7-2001.
[K111]See rule 7 of Service Tax Rules, 1994.
[K112]Section 71
omitted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004. Prior
to omission it read as under:
"71.
Verification of tax assessed by the assessee, etc..-(1) The
Superintendent of Central Excise may, on the basis of information contained in
the return filed by the assessee under section 70, verify the correctness of
the tax assessed by the assessee on the services provided.
(2) The Superintendent of Central Excise may
require the assessee to produce any accounts, documents or other evidence as he
may deem necessary for such verification as and when required.
(3) If on verification tinder sub-section (2), the Superintendent of Central Excise is of the opinion that service tax on any service provided has escaped assessment or has been under-assessed, he may refer the matter to the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise, who may pass such order of assessment as he thinks fit."
[K113]Inserted by the Finance Act, 2003, w.r.e.f. 16-7-1997 to 16-10-1998.
[K114]Section 72
omitted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004. Prior
to omission it read as under:
"72. Best judgment assessment.-If-
(a) any person fails to make the return under
section 70, or
(b) any person having made a return fails to
comply with the provisions of section 71, or
(c) the Assistant Commissioner of Central
Excise or, as the case may be, Deputy
Commissioner of Central Excise is not satisfied with the correctness or the completeness of the accounts of the assessee, the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise, after taking into account all the relevant material which he has gathered, shall, by an order in writing, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment."
[K115]Substituted
by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004 for the
following:
73. Value
of taxable services escaping assessment
(1) if-
(a) the Assistant Commissioner of Central
Excise or, as the case may be, the Deputy Commissioner of Cenual Excise has
reason to believe that by reason of omission or failure on the part of the
assessee, to make a return under section 70 for any prescribed period or to
disclose wholly or truly all material facts required for verification of the
assessment under section 7 1, the value of taxble service has escaped
assessment or has been under-assessed or service tax has been paid or has
been short-paid or any sum has erroneously been refunded, or
(b) notwithstanding that there has been no
omission or failure as mentioned in clause (a) on the part of the assessee, the
Assistant Commissioner of Central Excise or, as the case may be, Deputy
Commissioner of Central Excise has in consequence of information in his
possession, reason to believe that the value of any taxable service assessable
in any prescribed period has escaped assessment or has been under-assessed
or service tax has been paid or has been short-paid or any sum has
erroneously been refunded,
he may, in
cases falling under clause (a), at any time within five years, and in cases
falling under clause (b), at any time within one year, from the relevant date,
serve notice on the person chargeable with the service tax which has escaped
assessment or has been under assessed or has not been paid or has been short-paid,
or to whom any sum has been erroneously refunded, requiring him to show cause
why he should not pay the amount specified in the notice.
Explanation-Where
the service of the notice is stayed by an order of a court, the period of such
stay shall be excluded in computing the period of five years or one year, as
the case may be, under this section.
(2) The Assistant Commissioner of Central
Excise or, as the case may be, Deputy Commissioner of Central Excise shall,
after considering the representation, if any,
made by
the person on whom notice is served under sub-section (1), determine the
amount of service tax due from such person (not being in excess of the amount
specified in the notice) and thereupon such person shall pay the amount so
determined.
(2A) Where
any service tax has escaped assessment or has been under-assessed or
service tax has not been paid or has been short paid or erroneously refunded,
the person chargeable with the service tax, may pay the amount of tax on the
basis of his own ascerainment of such tax or on the basis of tax ascertained by
a Central Excise Officer before service of notice on him under sub-section
(1) in respect of service tax, and inform the Assistant Commissioner of Central
Excise or, as the case may be, the Deputy Commissioner of Central Excise of
such payment in writing, who, on receipt of such information shall not serve
any notice under sub-section (1) in respect of service tax so paid:
Provided
that the Assistant Commissioner of Central Excise or, as the case may be, the
Deputy Commissioner of Central Excise may determine the amount of short payment
of tax, if any, which in his opinion has not been paid by such person and,
then, the Assistant Commissioner of Central Excise or, as the case may be, the
Deputy Commissioner of Central Excise shall proceed to recover such amount in
the manner specified in this section, and the period of "one year"
referred to in sub-section (1) shall be counted from the date of receipt
of such information of payment.
Explanation
I.-Nothing contained in this sub-section shall apply cases falling
under clause (a) of sub-section (1).
Explanation
2-For the removal of doubts, it is hereby declared that the interest
under section 75 shall be payable an the amount paid by the person under this
sub-section and also on the amount of short payment of service tax, if
any, as may be determined by the Assistant Commissioner of Central Excise or,
as the case may be, the Deputy Commissioner of Central Excise, but for this sub-section.
(2B) The
provisions of sub-section (2A) shall not apply to any case where the
service tax had become payable or ought to have been paid before the day on
which the Finance Bill, 2003 receives the assent of the President.
(3) For
the purposes of this section, "relevant date" means,
(i) in the
case of taxable service in respect of which service tax has escaped assessment
or has been under-assessed or has not been paid or has been short paid
(a) where under the rules
made under this Chapter, a periodical return, showing particulars of service
tax paid during the period to which the said return relates, is to be filed by
an assessee, the date on which such return is so filed;
(b) where no periodical
return as aforesaid is filed. the last date on which such return is to be filed
under the said rules;
(c) in any other case, the
date on which the service tax is to he paid under this Chapter or the rules
made thereunder;
(ii) in a
case where the service tax is provisionally assessed under this Chapter or the
rules made thereunder, the date of adjustment of the service tax after the
final assessment thereof;
(iii) in a
case where any sum, relating to service tax, has erroneously been refunded, the
date of such refund."
[K116]Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K117]Ibid.
[K118]Ibid.
[K119]Substituted for "Collector" by the Finance Act, 1995.
[K120]Ibid.
[K121]Substituted for the words "an assessment or reducing a refund or otherwise increasing the liability of the assessee" by the Finance (No. 2) Act, 2004, w.e.f. 10.9-2004.
[K122] Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K123]Ibid.
[K124]Substituted for the words "assessment" by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K125]Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K126]Substituted for the words "assessment" by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K127]Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K128]Section 75 substituted by the Finance (No. 2) Act, 1998, w.e.f. 16-10-1998.
[K129]Substituted for "at the rate of fifteen per cent per annum" by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004. Earlier "fifteen per cent" was substituted for "twenty-four per cent" by the Finance Act, 2002, w.e.f. 16-8-2002.
[K130]Section 75A omitted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004. Prior to the omission, section 75A, as inserted by the Finance Act, 2001, w.e.f. 16-7-2001, read as under:
" 75A. Penalty for failure of registration.-Any person, liable to pay service tax in accordance with the provisions of section 68 or the rule.% made thereunder, fails to make an application for registration under section 69, shall pay, by way of penalty, a sum of five hundred rupees,"
[K131]Section 76 substituted by the Finance (No. 2) Act, 1998, w.e.f. 16-10-1998.
[K132]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K133]Substituted
by the Finance (No. 2) Act, 2004, w.e.f. 10.9-2004. Prior to the
substitution, section 77 as substituted by the Finance (No. 2) Act, 1998,
w.e.f. 16-10 -1998 and subsequently amended, read as under:
" 77. penalty for failure to furnish prescribed return.-If a person fails to furnish in due time the return which he is required to furnish under section 70 or the rules made thereunder, he shall be liable to a penalty which may extended to an amount not exceeding one thousand rupees."
[K134]Substituted
by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004 for the
following:
"if the Assistant Commissioner of Central
Excise or, as the case may be, Deputy Commissioner of Central Excise] in the
course of any proceedings under this Chapter is satisfied that any person has,
with intent to evade payment of service tax, suppressed at concealed the value
of taxable service or has furnished inaccurate value of such taxable service,
he may direct that such person shall pay by way of penalty, in addition to
service tax and interest, if any, payable by him, a sum which shall not be less
than, but which shall not exceed twice, the amount of service tax sought to be
evaded by reason of suppression or concealment of the value of taxable service
or the furnishing of inaccurate value of such taxable service:"
Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K135]Substituted
for the following proviso by the Finance Act, 2003, w.e.f. 14-5-2003:
"Provided that if the value of taxable service (as determined by the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise on assessment) in respect of which value has been suppressed or concealed or inaccurate value has been furnished exceeds a sum of two lakh rupees, the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise shall not issue any direction for payment by way of penalty without the previous approval of the Commissioner of Central Excise."
[K136]Omitted by
the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004. Prior to the
omission, section 79 read as under:
“79. Penalty for failure to comply with notice.-If the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise in the course of any proceedings under this Chapter is satisfied that any person has failed to comply with the provisions of section 7 1, he may direct that such person shall pay, by way of penalty, in addition to any service tax and interest, if any, payable by him, a sum which shall not be less than ten per cent, but which shall not exceed fifty per cent of the amount of the service tax, if any, which would have been avoided if the value of taxable service stated in the return by such person had been accepted as the correct value of taxable service."
[K137]Substituted for "section 77, section 78 or section 79' by the Finance (No. 2) Act, 2004, w. e.f. 10.9-2004.
[K138]Omitted,
ibid. Prior to the omission, section 81 read as under:
"81.
Offences by companies.-(I) Where an offence under this Chapter has been
committed by a company, 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 of the company, as well as the company, shall be deemed to be guilty
of the offence and shall be liable to be proceeded against and punished
accordingly:
Provided that nothing contained in
this sub-section shall render any such person liable to any punishment
provided in this Chapter, if he proves that the offence was committed without
his knowledge and that he had exercised all due diligence to prevent the
commission of such offence.
(2) Notwithstanding anything
contained in sub-section (1), where an offence under this Chapter has
been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to any neglect
on the part of, any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against
and punished accordingly.
Explanation.-For the purposes
of this section,
(a) "company" means any body
corporate and includes a film or other association of individuals; and
(b) "director" in relation to a firm means a partner in the firm”
[K139]Substituted for the words "Central Excise Officer" by the Finance (No. 2) Act, 1998, w.e.f. 16-10-1998.
[K140]The word "other" omitted by the Finance Act, 2002, w.e.f. 16-8-2002.
[K141]Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16.7-2001.
[K142]Substituted for "to search or may himself search for such documents or things" by the Finance Act, 2002, w.e.f. 16-8-2002.
[K143]Renamed for "Central Excises and Salt Act, 1944" by section 71 of the Finance (No. 2) Act, 1996.
[K144]Inserted by the Finance (No. 2) Act, 1998, w.e.f. 16-10-4999.
[K145]Substituted for "11I C" by the Finance Act, 2003, w.e.f. 14-5-2003, which was inserted by the Finance Act, 2002, w.e.f. 16-8-2002.
[K146]Substituted for "Collector" by the Finance Act, 1995.
[K147]Ibid.
[K148]Substituted for "Central Excise Officer subordinate to him" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K149]Substituted for "Collector" by the Finance Act, 1995.
[K150]Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K151]Substituted for "Collector" by the Finance Act, 1995.
[K152]Ibid.
[K153]Substituted for "Collector" by the Finance Act, 1995.
[K154]See Rule 8 and Form No. ST-4.
[K155]Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K156]The words "section 71, section 72 or" omitted by the Finance (No. 2) Act, 2004, w.ef. 10.9-2004.
[K157]Inserted by the Finance Act, 2003, w.e.f. 14-5-2003.
[K158]Substituted for "Collector" by the Finance Act, 1995.
[K159]Substituted for "Central Excise Officer" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K160]Substituted for "Collector" by the Finance Act, 1995.
[K163]Renamed for "Central Excises and Salt Act, 1944" by section 71 of the Finance (No. 2) Act, 1996.
[K164]See Rule 9 and Form Nos. ST-5, ST-6 and ST-7.
[K165]Substituted for "Collector" by the Finance Act, 1995.
[K166]Substituted for "Collector" by the Finance Act, 1995.
[K167]Substituted by the Finance Act, 2001, w.e.f. 16-7-2001.
[K168]Inserted by the Finance Act, 2001, w.e.f. 16-7-2001.
[K169]Substituted for "Collector" by the Finance Act, 1995.
[K170]Substituted for "The Central Excise Officer or the assess;ee, as the case may be, on receipt of a notice that an appeal against the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub section (2)" by the Finance Act, 2001, w.e.f. 16-7-2001.
[K171]Substituted for "Collector" by the Finance Act, 1995.
[K172]Substituted for "Collector" by the Finance Act, 1995.
[K173]Substituted
for the following sub-section (6) by the Finance (No. 2) Act, 20G4,
w.e.f. a date to be notified by the Central Government in the Official Gazelle:
"(6)
An appeal to the Appellate Tribunal shall be in the prescribed form and shall
be verified in the prescribed manner and shall, except in the case of an appeal
referred to in sub-section (2) or sub-section (2A) or a memorandum
of cross-objections referred to in sub-section (4), be accompanied
by a fee of two hundred rupees."
The italicised words were inserted by the Finance Act, 2001, w.e.f 16-7-2001.
[K174]Renamed for "Central Excises and Salt Act, 1944" by section 71 of the Finance (No. 2) Act, 1996.
[K175]Substituted by the Finance (No. 2) Act, 1998, w.e.f. 16-10-1998.
[K176]Substituted by the Finance (No. 2) Act, 1998.
[K177]Inserted by the Finance Act, 2002, w.e.f. 16-8-2002. See also the Service Tax Credit Rules, 2002, w.e.f. 16-8-2002, reproduced in Chapter 3, post.
[K178]Inserted by the Finance Act, 2003, w.e.f. 14-5-2003.
[K179]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K180]Renumbered for "(f)", ibid.
[K181]Substituted by the Finance Act, 2002, w.e.f. 16-8-2002.
[K182]Inserted by the Finance Act, 2003, w.e.f. 14-5-2003.
[K183]Inserted by the Finance (No. 2) Act, 2004, w.e.f. 10-9-2004.
[K184]Renamed for "Central Excises and Salt Act, 1944" by section 71 of the Finance (No. 2) Act, 1996.
[K185]Inserted by the Finance Act, 2003, w.e.f. 14-5-2003.