3rd January, 2007
F. No. 149 / 4 /2005-CX.4
Government of
Ministry of Finance
Department of Revenue
(Central Board of Excise and Customs)
***
Subject: Applicability of service tax on international in-bound roamers under telephone service – reg.
A question has arisen regarding the
applicability of service tax levy on roaming service provided to an
international in-bound roamer, i.e., subscriber of a foreign telecom network,
when in
2. “Roaming” is a widely used term in wireless telecommunications that refers to extension of connectivity service in a location that is different from the location/network area of home network, and it occurs when a subscriber of one wireless service provider physically moves to the network area of another wireless service provider. “International roaming” refers to the ability of a subscriber to move to a foreign service provider's network and use its network for making and/or receiving a telephone call.
3. To enable an in-bound roamer to hook on to the visited network and avail of telephone service, a temporary internal number is assigned by such network. Any call made to/from a roaming mobile is routed through the visited network like any other call. The details of usage of service by such a subscriber are captured and billing account is transferred to the home network for receiving the payments. The home operator then bills these calls to his subscribers. Roaming fees are traditionally charged on a per minute basis, and they are typically determined by the service provider's pricing plan.
4. In terms of the provisions of the Finance Act, 1994, telephone connection service means ‘any service provided to a subscriber by the telegraph authority in relation to a telephone connection’. Subscriber means ‘a person to whom any service of a telephone connection has been provided by the telegraph authority’. During international roaming, the visiting network provides service to a person treating him as a subscriber on a temporary basis for the period during which service is availed of by such person from the visited network. The only difference is that the payment is not directly received from the subscriber, but the same is routed through the home network. However, this does not alter the essential characteristics of the service, which is of a telephone connection. As regards the argument that no telephone connection is provided to an in-bound roamer, a telephone connection does not necessarily mean providing a telephone instrument or providing a SIM card. Telephone connection is provided so long as the telecom operator provides the facility to a person to make a connection for making or receiving a call (using a telephone) by assigning a unique identification number to line/instrument or card used for making a call. An identification number is essential, interalia, for routing the call to such line/instrument or card and to bill for the call charges based upon the duration of a call. Even if this number is allocated temporarily and internally, it remains a service of telephone connection. Further, the issues of entering into a contract or verification of the subscriber are not relevant to the levy of service tax.
5. Therefore, during the period of
roaming, the Indian telecom service provider provides telephone service to an
international in-bound roamer. This service to in-bound roamers is delivered
and consumed in
6. Accordingly, the domestic telecom operators providing roaming service to international in-bound roamers are liable to pay service tax on the amount received through the home network on account of service provided to such international roaming subscriber.
7. The field formations may take action, for collection of service tax on the basis of this circular only in respect of such services which would be provided to an international in-bound roamer from 15.1.2007 onwards. For the period prior to this date, the matter is under examination of the Board.
18th December, 2006
F.No. 255/1/2006-CX.4
Government of
Ministry of Finance
Department of Revenue
(Central Board of Excise and Customs)
Subject: Applicability of service tax on fee collected by Public Authorities while performing statutory functions /duties under the provisions of a law – regarding
A number of sovereign/public authorities (i.e. an agency constituted/set up by government) perform certain functions/ duties, which are statutory in nature. These functions are performed in terms of specific responsibility assigned to them under the law in force. For examples, the Regional Reference Standards Laboratories (RRSL) undertake verification, approval and calibration of weighing and measuring instruments; the Regional Transport Officer (RTO) issues fitness certificate to the vehicles; the Directorate of Boilers inspects and issues certificate for boilers; or Explosive Department inspects and issues certificate for petroleum storage tank, LPG/CNG tank in terms of provisions of the relevant laws. Fee as prescribed is charged and the same is ultimately deposited into the Government Treasury. A doubt has arisen whether such activities provided by a sovereign/public authority required to be provided under a statute can be considered as ‘provision of service’ for the purpose of levy of service tax.
2. The issue has been examined. The Board is
of the view that the activities performed by the sovereign/public authorities
under the provision of law are in the nature of statutory obligations which are
to be fulfilled in accordance with law. The fee collected by them for
performing such activities is in the nature of compulsory levy as per the
provisions of the relevant statute, and it is deposited into the Government
treasury. Such activity is purely in public interest and it is undertaken as mandatory
and statutory function. These are not in the nature of service to any
particular individual for any consideration. Therefore, such an activity
performed by a sovereign/public authority under the provisions of law does not
constitute provision of taxable service to a person and, therefore, no service
tax is leviable on such activities.
3. However, if such authority performs a service, which is not in the nature of statutory activity and the same is undertaken for a consideration not in the nature of statutory fee/levy, then in such cases, service tax would be leviable, if the activity undertaken falls within the ambit of a taxable service.
6th November, 2006
F. No. 137/127/2006-CX.4
Government of
Ministry of Finance
Department of Revenue
(Central Board of Excise and Customs)
***
Sub:- Mandatory E-Payment of Service Tax for major assessees – reg.
The e-payment of service tax has
been made mandatory w.e.f . 1.10.2006, for all
assesses who has paid Rs 50 lakh or more in the preceding financial year or in
the current financial year.
2. It has been brought to the notice of the Board that there are certain problems like procedural delays in opening of account in designated banks and issue of user’s-id and password by banks for internet banking; delays in passing a resolution by the Board of Directors of a company to authorize any person for making e-payment ( a requirement stipulated by banks for internet banking); systems failure, particularly at bank’s end, are causing some difficulties to the assessee in complying with the requirement of mandatory e-payment of service tax. Keeping in view the systemic and procedural problems during initial phase of implementation of this scheme, the field formation may take a lenient view in such case where there is reasonable cause for failure to make mandatory e-payment and penal action may not be initiated. At the same time, such assesses should expeditiously complete the procedural formalities for availing internet banking facility from designated banks and comply with the requirement of mandatory e-payment.
3. Certain doubts have also been raised as regards the interpretation of qualifying amount of service tax of Rs 50 lakh paid by the assessee, as discussed below.
3.1 For a person providing taxable service from more than one premises, where each such premises is separately registered with the department for payment of service tax, the criterion of Rs 50 lakh would apply to each registered premises individually, as each registered premises is separately an assessee in terms of law. Similar is the situation in the case of a person paying service tax on taxable service received by him. However, in case of a Large Taxpayer (LTU), the cumulative service tax paid by all registered premises of such Large Taxpayer will be taken into account for satisfaction of criterion of payment of service tax amount of Rs 50 lakh.
3.2. If a person pays service tax from a registered premises for both the taxable services provided by him and the taxable service received by him on which he is liable to pay service tax, the cumulative service tax paid, i.e., service tax paid on taxable service provided from and service tax paid on taxable service received in such registered premises would be taken into account for the purposes of satisfaction of criterion of payment of service tax amount of Rs 50 lakh.
3.3 Further, for the purposes of calculation of this amount of Rs 50 lakh the total service tax paid by cash plus CENVAT credit would be taken into account as service tax paid amount. Therefore, if an assessee has paid service tax of Rs 50 lakh (in preceding financial year or the current year) in cash plus CENVAT credit, such assessee, if he pays any further service tax in cash, would be required to make mandatory e- payment
6th November, 2006
F.No. 137/128/2006-CX-4
Government of
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
***
Subject: Service tax issues relating to authorized motor vehicle dealers and service stations -reg.
It has been brought to the notice of the Board that certain doubts have arisen in respect to activities undertaken by authorized motor vehicle dealers and service stations. The issues are as mentioned below:-
(a)
Whether the mark-up (profit) on the
spare parts sold by a service station during the servicing of vehicles is
liable to payment of service tax?
(b)
(b) Whether exemption can be claimed on the cost of consumables that get consumed during the course of providing service?
(c) Whether ‘free services’ given by the authorized dealers (for which they are reimbursed by the vehicle manufacturers) are subjected to service tax?
(d) Whether the commission received by the automobile dealers from Banks /Non Banking Financial Companies (NBFC), for introducing the customers seeking finances / loans to such banks / NBFCs is to be subjected to service tax? Further, in case part of these incentives are passed on by the dealers to the customers, whether tax would be leviable only on that part of incentive, which is retained by the dealers or whether it would be on full amount?
(e) Whether service tax is chargeable on the amounts received for servicing /repair of the commercial vehicles?
2. The issues have been examined. As regards, the issue relating to sale of spare parts and consumables, notification No. 12/2003-ST. dated 20.06.2003, exempts service tax to the extent of value of the goods and materials sold by the service provider to the service recipient, if documentary proof of such sale exists and no credit of excise duty paid on such spares or consumables have been taken. It may, however be pertinent to note that for availing such exemption, the goods must be sold and consequently, they must be available (whether independently or as a part used for repair of a vehicle) for sale. In other words, the exemption would not be available to such consumables which have been consumed during the process of providing service and are not available for sale.
3. As
regards ‘free servicing’ (where the customer does not pay any charges) of the
motor vehicles, normally the service
charges are reimbursement by the vehicle manufacturers, who promises such a
facility to attract customer. As
the law does not in any way restricts the levy of service tax only on the
service charges received from the recipient
of the service, therefore, such reimbursements are subject to service
tax.
4. In some cases, the automobile
dealers help the buyers of the vehicles for arranging the finances. For this,
they have a tie-up with Banks / Non-banking Finance Companies. The customers are
advised by the dealers to approach such financial companies for taking loans.
The automobile dealers get commission from such financial companies for
directing the customers to the latter. By this activity, the automobile dealers
‘promote or market the services provided by their customer (i.e., the financial
institution), and are therefore covered under ‘taxable service’, namely, the
“Business auxiliary service”. The tax is payable on the gross commission
received by the automobile dealer. In some cases, the dealers share part of
their commission with their customers to attract them. However, this is an
independent transaction between the automobile dealer and the purchaser of the
vehicle, and does not involve the service rendered by the automobile dealer to
the finance company. Therefore, the tax payable by the dealer would be on the
gross amount received from the financial company and not on the balance amount,
i.e., after excluding the amount that he passes on to the customer.
5. As regards the applicability of service tax on the activity of servicing /repairing of the commercial vehicles, it is clarified that as regards ‘authorized service stations’, the taxable service, means any service provided or to be provided, to a customer, by an authorized service station, in relation to any service, repair, reconditioning or restoration of motor cars, light motor vehicles or two wheeled motor vehicles, in any manner. Further, a ‘light motor vehicle’ means any motor vehicle constructed or adapted to carry more than six messengers, but not more than twelve passengers, excluding driver. Similarly, as per the ‘Motor Vehicle Act’, a ‘motor car means any motor vehicle other than a transport vehicles, omnibus, road-roller, tractor, motor cycle or invalid carriage’. In other words, servicing, repair, reconditioning or restoration of specified types of vehicles (whether they are used for commercial purposes or not) fall under the category of taxable services. However, servicing of vehicles like trucks is not within the ambit of service tax.
1st November, 2006
F. No. 137/71/2006-CX.4
Government of
Ministry of Finance
Department of Revenue
(Central Board of Excise and Customs)
Subject: Service Tax liability on institutes like IITs or IIMs charging fee for campus interviews -reg.
Educational institutes like IITs and IIMs charge a fee from prospective employers like corporate houses / MNCs, who come to these institutes for recruiting candidates through campus interviews. A doubt has arisen as to whether these educational institutes fall in the category of ‘manpower recruitment or supply agency’ and accordingly, whether service tax is leviable on this fee.
2. As per the provisions of the Finance Act, 1994, the ‘taxable service means any service provided or to be provided to a client, by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner’. The definition of ‘manpower recruitment or supply agency’, prior to 1.5.2006, was, “any commercial concern engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to a client.” However, w.e.f. 1.5.2006, the words “commercial concern” have been replaced by the words “any person”.
3. The issue that requires resolution is whether such educational institutes fall within the definition of ‘manpower recruitment or supply agency’, and if so whether they were so covered even prior to amendment made w.e.f. 1.5.2006.
4. The issue has been examined by the Board. A commercial concern is an institution / establishment that is primarily engaged in commercial activities, having profit as the primary aim. It is not one / few isolated activities which determine whether or not an institution is a commercial concern. It is the totality of its activity and the objective of its existence that determines the commercial nature of an institution as an ‘entity’ or a ‘concern’. The principal activity of institutes like IITs or IIMs is to impart education without the objective of making profit. Therefore, these institutes cannot be called a commercial concern, even if on some of their activities (like holding campus interviews), they charge fee. Accordingly, these institutes were not liable to pay service tax prior to 1.5.2006 under the category of “manpower recruitment or supply service”. As regards the period after 1.5.2006, decision should be taken after taking into account all material facts on case to case basis.
5. Trade and field formations may be advised accordingly.
17th October, 2006
Government of
Ministry of Finance
Department of Revenue
Tax Research Unit
*******
Service tax is leviable with effect
from 1st May, 2006 on services provided by an aircraft operator to passengers
embarking in India for international journey by any class, other than economy
class, under section 65(105)(zzzo) read with section 66 of the Finance Act
1994. Board of Airline Representatives in India (BAR) have
sought clarifications on the levy of service tax on the above mentioned
service.
2. The Central Board of Excise and Customs
has examined the issues. The issues in brief and the clarifications are
furnished below:
|
S.No |
Issue |
Clarification |
|
1 |
In the case of international journey commencing from an
Indian airport involving stopover/ transfer at intermediate airports outside
India before reaching the destination (say Mumbai-Dubai-London-New York),
whether service tax would be leviable on the value indicated in the ticket or
on the value attributable to the first sector (Mumbai-Dubai)? |
International journey is from Mumbai to |
|
2. |
In case the international journey also includes travel in
a domestic sector as part of the international journey (say
Delhi-Mumbai-London), whether service tax is leviable excluding the value
attributable to the domestic sector or on the total value of the ticket
treating the domestic sector as integral part of international journey? |
Service tax is leviable on the total value of the ticket. |
|
3. |
In the case of round trip/return ticket, whether service tax
is leviable on the total value of the ticket or only half the value of the
ticket? |
Service tax is
leviable on the total value of the ticket. |
|
4. |
In the case of journey commencing from an airport outside
India and completed at an airport outside India but including a sector
wherein the passenger disembarks and subsequently embarks at an Indian
airport as part of international journey (say
Sydney-Mumbai-Dubai-Singapore-Sydney), whether service tax is leviable for
Mumbai-Dubai sector only or on the total value of the ticket? |
Service tax is not leviable in such cases. |
|
5. |
Whether ticket issued outside |
Service tax is payable by the service provider for the
taxable service provided. Place of purchase/ issue of ticket is of no
relevance or consequence to determine the levy of service tax under section
65(105)(zzzo) read with section 66 of the Finance
Act, 1994. |
F. No.137/123/2006-CX-4
Ministry of Finance
Department of Revenue
(Central Board of Excise & Customs)
*****
19th September, 2006
Sub: Scope of term "charitable" used in the definition of club or association service - reg.
The issue is whether any club or association that enjoys exemption under the provisions of Income Tax Act on the ground of being a public charitable institution gets automatically excluded from levy of service tax under section 65(105)(zzze) read with section 65(25a) of the Finance Act, 1994.
2. Exemption under the Income Tax Act on the ground of being a public charitable institution is of no consequence to levy of service tax. Levy of service tax is entirely governed by the provisions contained in the Finance Act, 1994 and the rules made thereunder.
3. The definition of “charity” and “charitable” as defined in Black’s Law Dictionary may be kept in mind. “Charity” is defined as “aid given to the poor, the suffering or the general community for religious, educational, economic, public safety, or medical purposes”, and “charitable” as “dedicated to a general public purpose, usually for the benefit of needy people who cannot pay for the benefits received”.
4. The officer concerned should examine the matter on a case-by-case basis, and the decision should be made after taking into account all material facts and statutory provisions.
5. Trade and field formations may be advised accordingly.
F.NO.354/59/2006-TRU
Government of
Ministry of Finance
Department of Revenue
Tax Research Unit
****
Circular No. 83/1/2006-ST
4th July,
2006.
Sub: Levy of service tax on banking and financial services – Services provided by Department of Posts - Reg.
I am directed to say that the scope of levy of service tax on “banking and other financial services” defined under section 65(12) of the Finance Act, 1994 and classifiable as taxable service under section 65(105)(zm) of the Finance Act, 1994 has been examined in the context of certain services provided by the Department of Posts.
2. The issue is whether or not services such as money orders, operation of bank accounts, issue of postal orders provided by Department of Posts are liable to service tax under section 65(12) read with section 65(105)(zm) of the Finance Act, 1994, as amended.
3.
Banking and other financial services are defined under section 65(12). Such
services provided to a customer by a banking
company or a financial institution including a non-banking financial company or
any other body corporate or
any other person to a customer are liable to service tax under section
65(105)(zm). The expression ‘any other person’ appearing in section 65(105)(zm)
is to be read ejusdem generis with the preceding words. The expression ‘other financial services’ appearing
under section 65(12)(a)(ix) is a residuary entry and
includes those services which are
normally rendered by banks or financial institutions.
4. Hence, banking and other financial services provided by a banking company or a financial institution or a non-banking financial company or any other service provider similar to a bank or a financial institution are liable to service tax under section 65(105)(zm) of the Finance Act, 1994. Department of Posts is not similar to a bank or a financial institution and hence does not fall within the category of any other similar service provider.
5. In view of the foregoing, it is clarified that services such as transfer of money through money orders, operation of savings accounts, issue of postal orders provided by the Department of Posts are not liable to service tax under section 65(105)(zm) read with section 65(12) of the Finance Act, 1994.
F. NO. 354/59/2006-TRU
Circular No. 82 / 3
/2005- ST
21st October, 2005
F.No 137/44/2004-CX.4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Tax Research Unit
Subject: Service Tax Forms ST-1, ST-2 and ST-3
Every person liable to pay service tax is required to get registered. In addition, the following categories of persons are required to get registered under the Service Tax (Registration of Special Category of Persons) Rules, 2005:
(i) input service distributor;
(ii) any provider
of taxable service whose aggregate value of taxable service in a financial year
exceeds three lakh rupees
2. The
Service Tax Rules, 1994 have been amended vide notification No. 31/2005-Service
Tax dated 20th October, 2005,
notifying the revised Forms ST-1 (application for registration), ST-2
(certificate of registration) and ST-3 (half- yearly
return). The same Form ST-1 has also been specified vide notification No
32/2005-Service Tax dated 20th October,
2005 for the purpose of registration under rule 3 of the Service Tax
(Registration of Special Category of Persons)
Rules, 2005. Format of Certificate of Registration (ST-2) is common for all
categories of persons. Further, the
same Form ST-3 has been specified for the purpose of furnishing return under
sub-rules (9) and (10) of rule 9 of the
CENVAT Credit Rules, 2004 vide notification No 33/2005-Central Excise (N.T.)
dated 20th October, 2005.
3. All new registrations are to be carried out as per the revised forms. In this regard the following instructions shall be followed:
(i) The applicant shall be required to produce copy of PAN, proof of residence and constitution of applicant at the time of filing an application for registration. Power of attorney would be required in respect of authorized person(s).
(ii) Centralized registration shall continue
to be granted by DGST as per the procedure prescribed in letter F.No
354/106/2005-TRU dated 8th August, 2005.
4. It may be noted that if the registration certificate is not granted within seven days of the receipt of application in Form ST-1, the registration applied for shall be deemed to have been granted.
5. The half yearly return in Form ST-3 for the period April-September 2005 may be furnished either in the revised format or in the format existing prior to 20th October, 2005.
6. Field formations may be suitably informed
7. A suitable trade notice may be issued.
8. Hindi version will follow.
(Arvind
Madhavan)
Technical Officer (TRU)
Tel: 011-23092037
Fax: 011-23093037
Circular No. 81/2/2005-ST
7 th
October 2005
F.NO.354/132/2005-TRU
Government of India
Ministry of Finance
Department of Revenue
Tax Research Unit
Sub: Leviability of service tax on maintenance or repair of software.
Board has examined the leviability of service tax on maintenance or repair or servicing of software under section 65(105)(zzg) read with section 65 (64) of the Finance Act , 1994.
2. Supreme Court in the case of Tata Consultancy Services vs State of Andhra Pradesh (Civil Appeal no 2582 0f 1998) has observed that all the tests required to satisfy the definition of goods are possible in the case of software and in computer software the intellectual property has been incorporated on media for the purpose of transfer and software and media cannot be split up. Therefore, sale of computer software falls within the scope of sale of goods. Supreme Court has also observed that they are in agreement with the view that there is no distinction between branded and unbranded software.
3. Branded software, also known as canned software, sold off the shelf, is transferred in a media and is sold as such and the Supreme Court has decided that such branded software falls within the definition of goods. In the case of unbranded / customized software, the supplier develops the software and thereafter transfers the software so developed in a media and it is taken to the customer’s premises for loading in their system. Thus, in the case of unbranded / customized software also, the intellectual property namely software is incorporated in a media for use. Supreme Court has held that software in a media is goods.
4. Any service provided to a customer by any person in relation to maintenance or repair is leviable to service tax under section 65(105) (zzg) of the Finance act , 1994. “Maintenance or repair” is defined under section 65(64) of the said Act. Accordingly, “maintenance or repair” means any service provided in relation to maintenance or repair or servicing of any goods or equipment.
5. Software, being goods, any service in relation to maintenance or repair or servicing of software is leviable to service tax under section 65(105)(zzg) read with section 65 (64) of the Finance Act, 1994.
6. These instructions are issued taking into account the said decision of the Supreme Court , and in supersession of all earlier clarifications / circulars issued on the above subject.
7. Field formations may be suitably informed.
8. Trade notice may be issued for information of the trade.
9. The receipt of this circular may kindly be acknowledged.
10. Hindi version will follow.
F.NO.354/132/2005-TRU
R.Sriram
Deputy Secretary to the Govt of
Kailash Sethi
10th August, 2005
F.No. 341 / 32 /2005-TRU
Dear
As you are aware the States of Maharashtra and
2. Board have received representations from certain associations of service tax payers in these states requesting for extension of date for depositing service tax for the month of July, 2005, due for payment on 5th August. The matter has been examined.
3. Section 75 of the Finance Act, 1994 envisages payment of interest on delayed payment of service tax. Section 76 provides for imposition of penalty in cases of delayed payment of service tax. Section 80 specifically mentions that no penalty shall be imposed under section 76 for delayed payment of service tax if the assessee proves that there was reasonable cause for the delay in payment of service tax within the due date.
4. In
view of the unprecedented rains and floods and consequent difficulties faced by
the assessees in Mahrashtra and Gujarat, for delayed payment of service tax due
for the month of July, 2005, paid on or before 20th August, 2005,
you are advised to take a lenient view under section 80 and impose no penalty
under section 76 of the Finance Act, 1994. This facility may be provided only
for assessees who discharge their full liability for payment of service tax for
the month of July’ 2005 on or before 20th August,
2005.
With Yours
sincerely,
(Kailash Sethi)
To
Chief
Commissioners of Central Excise of Mumbai-I/ Mumbai-II/
F.No./
354/106/2005-TRU
8th August, 2005
F.No./ 354/106/2005-TRU
Government of
Ministry of Finance
Department of Revenue
(Tax Research Unit)
To,
The Director General (Service Tax )
9th Floor, Piramal Chambers
Parel
Mumbai 400012
Sir,
Subject : Service Tax - Centralized Registration of assessees
Please refer to your letter F.No. V/DGST/(21)/CR/1/2005
dated 9/6/2005 regarding centralized registration by service providers wherein
details to be furnished by persons seeking such centralized registration
have been prescribed. Representations have been received by the Board
stating that difficulties are being faced by service providers in submitting
the information and documents required to be submitted as per the above letter
and that this has resulted in delay in granting registration and consequently
service tax providers could not deposit the tax on time. They have requested
simplification of the process for obtaining centralized registration.
The matter has been examined by the Board. The
information called for from the service provider at the time of applying for
registration has been reviewed. It is felt that the information to be furnished
at the time of registration may be limited to the essential information and
during verification more details can be obtained from the service providers. In
the light of the above, information to be sought at the time of seeking
centralized registration has been revised and the revised list of information
to be furnished is enclosed.
The following procedure is laid down for granting of centralized registration:
1. The service provider seeking centralized registration shall submit the application in ST-1 form, complete in all respects, along with information as per Annexure A, to the jurisdictional Deputy Commissioner / Assistant Commissioner in whose charge, the premises / offices to be centrally registered, falls;
2. The jurisdictional Central Excise / Service Tax Deputy Commissioner/ Assistant Commissioner shall verify the information
For departmental use only
27th July, 2005
F.No.B1/ 6 /2005-TRU
Government of
Ministry of Finance
Department of Revenue
(Tax Research Unit)
To,
Member, CBEC (ALL)
The Chief Commissioners of Central Excise and Service Tax (ALL)
The Director Generals (ALL)
The Commissioners of Central Excise and Service Tax (ALL),
The Commissioners of Service Tax
Madam/Sir,
Subject : Budget 2005 -2006, Issues pertaining to Service Tax
In the Budget for 2005-2006,
proposals were incorporated to levy service tax on nine new services and to expand
the scope of twelve existing taxable services [refer clauses (a) and (b) of
section 88 of the Finance Act, 2005]. Certain other important legislative
changes have also been made relating to,-
(a) taxable services received from abroad;
(b) linking payment of service tax with receipt of payment for the taxable services provided or to be provided; and
(c) issue of show cause notices and adjudication.
2. The Finance Act, 2005 (hereinafter referred as the Finance Act) has come into force with effect from 13th May, 2005. Provisions relating to levy of service tax on new services and proposed expansion in the scope of existing services made by amending sections 65 and 66 of the Finance Act, 1994 have been made effective from 16th June, 2005 (refer notification No. 15/2005-Service Tax dated 7/6/2005). Certain other amendments relating to service tax in the Finance Act, 1994 are effective from the date of enactment of the Finance Act.
3. The scope of these changes is explained in the following paragraphs.
4. New services
5. Transport of goods through pipeline or other conduit [see sub-clause (zzz) of section 65(105) of the Finance Act, 1994]
5.1 Transportation of goods, other than water, through pipeline or conduit is generally employed to transport petroleum and other petroleum products, natural gas, LPG, chemicals, coal slurry and other similar products. Such transport services are liable to service tax under sub-clause (zzz) of section 65(105) of the Finance Act, 1994. Consideration for the said transportation service provided may be payable periodically or from time to time. The service provider is required to pay service tax as and when payment is received for the services provided or to be provided.
6. Site
formation and clearance, excavation, earth moving and demolition services
6.1 Any service provided or to be provided to any person, by any other person, in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities is leviable to service tax under sub-clause (zzza) of section 65(105) of the Finance Act, 1994. “Site formation and clearance, excavation and earthmoving and demolition” has been defined in clause (97a) of section 65 of the Finance Act, 1994.
6.2 The definition of site formation and clearance, excavation and earthmoving and demolition is an inclusive definition and the activities specifically mentioned are indicative and not exhaustive. Prior to construction of buildings, factory or any civil structure, activity of mining or laying of cables or pipes, preparation services of site formation and clearance, excavation and earthmoving or leveling are normally undertaken for a consideration to make the land suitable for such activities. Such services include blasting and rock removal work, clearance of undergrowth, drilling and boring, overburden removal and other development and preparation services of mineral properties and sites, and other similar excavating and earthmoving services. Demolition of structures, buildings, streets or highways is also undertaken for a consideration as a preparatory activity for subsequent construction activity or for clearing the site for any other purpose. All such activities fall within the scope of this service.
6.3 However, site formation and clearance, excavation and earthmoving and demolition services when provided in relation to agriculture, irrigation, watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies are specifically excluded and not within the scope of this service.
6.4 Notification 17/2005-ST dated 7/6/2005 exempts this service provided in the course of construction of roads, airports, railways, transport terminals, bridges, tunnels, dams, major and minor ports.
7. Dredging
services
7.1
Any service provided or to be provided to any person, by any other person, in
relation to dredging is leviable to
service tax under sub-clause (zzzb) of section 65(105) of the Finance Act,
1994. ‘Dredging’ has been defined
under clause (36a) of section 65 of the Finance Act, 1994.
7.2 This
taxable service covers dredging which is generally undertaken for removal of
material such as silt, sediments,
rocks etc. of rivers, ports, harbour, backwater or estuary for providing
adequate draught for ships
and other vessels and to maintain shipping channels. Service tax is leviable
only on dredging of river, port,
harbour, backwater or estuary and dredging in any other cases does not attract
service tax. The definition
of dredging is an inclusive definition and the activities specified are only
indicative and not exhaustive.
8. Survey
and map making
8.1 Any service provided or to be provided to any person, by any other person, other than by an agency under the control of, or authorised by, the Government, in relation to survey and map-making is taxable under sub-clause (zzzc) of section 65(105) of the Finance Act, 1994. ‘Survey and map-making’ has been defined under clause (104b) of section 65 of the Finance Act, 1994.
8.2 This service covers geological, geophysical, geochemical and other prospecting services by studying the properties of the earth and rock formation and structures. It also includes services providing information on sub-surface earth formations by different methods such as seismographic, gravimetric, magnetometric methods or other sub-surface surveying methods.
8.3 Further, it covers surface surveying, services of gathering information on the shape, position or boundaries of a portion of earth’s surface by methods such as transit, photogrammetric, or hydrographic, for the purpose of preparing maps. It also includes surveying or collection of data by satellites.
8.4 ‘Survey and exploration of minerals’, which is a taxable service under sub-clause (zzv) of section 65(105) since 2004, covers specified services rendered in relation to location or exploration of deposits of mineral, oil or gas. The new taxable service of ‘survey and map-making’ classifiable under sub-clause (zzzc) of section 65(105) of the Finance Act, 1994, covers other such activities excluding “survey and exploration of minerals” classifiable under sub-clause (zzv) of section 65(105) since 2004 .
8.5 Map making consists of preparation or revision of maps of all kinds such as topographic, hydrographic, roads, planimetric, cadastral, city maps etc. using various information sources.
8.6 However, survey and map-making services rendered by an agency under the control of the Government or authorised by the Government, such as ‘Survey of India’ are specifically excluded and are outside the scope of this service.
9. Cleaning
services
9.1 Any service provided or to be provided to any person, by any other person, in relation to cleaning activity is taxable under sub-clause (zzzd) of section 65(105) of the Finance Act, 1994. “Cleaning activity” has been defined under clause (24b) of section 65 of the Finance Act, 1994.
9.2
Generally contracts / agreements are entered into for cleaning of commercial
complexes such as multiplexes,
shopping complexes, office complexes, industrial buildings etc. The contracts /
agreements may
be in writing or may be unwritten. The gross amount charged for such cleaning
would be leviable to service
tax. This taxable service includes,-
(i) Specialized cleaning services such as
disinfecting and exterminating, sterilization of objects, etc. Such cleaning
services would be taxable when performed for commercial or industrial buildings
and their premises, factories, plant and machinery, tank or reservoir of such
buildings;
(ii) Disinfecting, exterminating insects,
rodents and other pests and fumigation services in respect of specified
premises would be liable to service tax. In respect of multi-storeyed
commercial buildings, window cleaning is a specialized service. Window cleaning
services, including exterior window cleaning using swing stages would be liable
to service tax;
(iii) Floor cleaning and waxing, wall cleaning
etc. performed on the premises of commercial or industrial buildings;
(iv) Specialized cleaning services such as cleaning services for computer rooms, cleaning of machinery or plant, reservoirs and tanks of commercial or industrial buildings, furnace and chimney cleaning services and similar services.
9.3 However, such cleaning services in relation to agriculture, horticulture, animal husbandry or dairying would be excluded from the purview of service tax. Further, such cleaning services in respect of non-commercial buildings and premises thereof would not be covered within the purview of service tax under this category.
10. Membership of Clubs
or Associations
10.1 Any service provided or to be provided to its members by any club or association in relation to provision of services, facilities, or advantages for a subscription or any other amount is taxable under sub-clause (zzze) of section 65(105) of the Finance Act, 1994. “Club or association” has been defined under clause (25a) of section 65 of the Finance Act, 1994.
10.2 Various clubs or associations provide services, facilities or advantages to their members for a subscription or a charge. This taxable service covers within its ambit the charges recovered by such clubs or associations for membership and providing various services. However, exclusions have been made in respect of specific clubs or associations which will not be covered within the ambit of clubs or associations for the purpose of levy of service tax.
10.3 These exclusions cover any body established or constituted by or under any law, trade unions, clubs or association formed for promotion of agriculture, horticulture or animal husbandry, clubs or association which are non profit making bodies and are engaged in any activity which are in the nature of public service and are of a charitable, religious or political nature, clubs or associations associated with press or media.
10.4 Legally, bodies which are established or constituted “under a statute” are different from bodies which are “formed and registered” under a statute. Companies and Societies registered under the respective Acts are merely bodies “formed and registered” under these Acts and cannot be treated as “established or constituted” under these Acts. Therefore companies or societies would fall outside the scope of clause (25 a)(i) of Section 65 of Finance Act. In other words, any body formed and registered as a company or society which provides services, facilities or advantages for a subscription or any other amount to its members is liable to pay service tax under section 65(25a) of the Finance Act, 1994.
10.5 Taxable services are defined as services provided to members by clubs or associations in relation to provision of services, facilities or advantages for a subscription or any other amount. Facilities or advantages are provided to members in return for a subscription or other consideration. The scope of the term any other amount is the amount paid by members, apart from membership fee or recurring subscription fee, such as amounts paid for provisions of services to the guests of a member, amount paid for get-togethers and functions charged over and above the subscription amount. This will also be liable to service tax. However, amount charged by club to its members for sale of items such as food or beverages would not be taxable provided the documents evidencing such sale are available.
10.6 Any
additional fee should be treated in the same way as subscription. Life
membership fees must be treated in the same way as subscription. In certain
professions, persons cannot practice unless they are registered with a
statutory body and have paid fees which are prescribed by law. In such cases,
the organization is not providing any service in the course of its business and
it is merely carrying statutory functions. Since no service is provided, the
question of levy of service tax does not arise. However, if there is no
statutory requirement, service tax is liable to be paid.
11. Packaging services
11.1 Any service provided or to be
provided to any person, by any other person, in relation to packaging
activity is taxable under sub-clause (zzzf) of section 65(105) of the Finance
Act, 1994. “Packaging activity” has been defined under clause (76b) of section
65 of the Finance Act, 1994.
11.2 This
taxable service would cover packaging activity undertaken by a person for any
other person. These kinds of
packaging services may be done for pharmaceuticals (aseptic packaging), fragile
goods, heavy machinery and
hardware, using variety of automated or manual packaging techniques, including
blister forming, and
packaging, shrink or skin wrapping, form filling and sealing, pouch filling,
bottling or aerosol packaging.
This service also includes labeling or imprinting of the package. However,
packaging activity which
amounts to manufacture within the definition of section 2(f) of Central Excise
Act, 1944 would not be liable to
service tax. Service tax would be leviable on the gross amount charged for
rendering the packaging
services.
12.
Mailing list compilation and mailing
12.1 Any service provided or to be provided to any person, by any other person, in relation to mailing list compilation and mailing is taxable under sub-clause (zzzg) of section 65(105) of the Finance Act, 1994. “Mailing list compilation and mailing” has been defined under clause (63a) of section 65 of the Finance Act, 1994.
12.2 Business establishments such as banks, insurance companies, companies listed on stock exchanges, real estate agents and other similar commercial entities engage the services of persons who compile and provide lists of names, addresses and other information from telephone directories, internet or any other source of information for the benefit of the business. Some agencies also provide services of sending documents, materials, information or any other goods by addressing, stuffing, sealing, metering or mailing the envelope or packet for or on behalf of the client. Such services are taxable under this category of service. Mail order business companies may engage the services of mailing companies to despatch goods to customers. Such mailing companies are also covered under this service.
13. Construction
of residential complexes
13.1 Any service provided or to be provided to any person, by any other person, in relation to construction of complex is taxable under sub-clause (zzzh) of section 65(105) of the Finance Act, 1994. “Construction of complex” has been defined under clause (30a) of section 65 of the Finance Act, 1994. ‘Residential complex” has been defined under clause (91a) of section 65 of the Finance Act, 1994.
13.2
Construction of new building or civil structures used for commercial or
industrial purposes and repair, alteration
or restoration activities of such buildings or civil structures is liable to
service tax since 2004. In this
year’s budget the construction of new residential complex or a part thereof is
also covered under service
tax. The term of “construction of complex” is defined
under section 65 (30a) of the Finance Act 1994.
It covers,-
· construction of a new residential complex
· completion and finishing services in relation to a residential complex, whether or not new
· repair, alteration, etc. in relation to residential complex, whether or not new.
13.3 This service would generally cover construction services in respect of residential complexes developed by builders, promoters or developers. Such residential complexes are normally constructed after obtaining approval of the statutory authority for their layout. For the purpose of this levy, residential complex means,-
(i) a building or buildings located within a premises;
(ii) total number of residential units within the said premises are more than twelve;
(iii) having common area;
(iv) having common facilities or services; and
(v) layout of the premises has been approved by the appropriate
authority.
Common area would include roads, staircases and other similar areas where residents of the residential complex have easement rights. The list of facilities prescribed is merely illustrative and not exhaustive. Some residential complexes may also contain other facilities such as market or shopping complex, schools, security, banks, gymnasium, health club, sports facilities, power back up and the like.
13.4 However,
residential complex having only 12 or less residential units would not be
taxable. Similarly, residential complex constructed by an individual, which is
intended for personal use as residence and is constructed by
directly availing services of a construction service provider, is also not
covered under the scope of the service tax and not taxable.
13.5 Post construction, completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry and similar services done in relation to a residential complex, whether or not new, would be included as part of the construction activity of residential complexes for the purpose of levy of service tax.
13.6 The taxable service is the service provided in relation to construction of a residential complex. Service tax would be payable only on the gross amount charged by the service provider for the construction service provided and it would not include the cost of land and stamp duty paid for registration of land. However, notification No. 18/2005 –ST dated 7/6/05 provides option to avail abatement and pay service tax only on 33% of the gross amount charged, subject to fulfillment of conditions specified in the notification.
13.7 Repair, alteration, renovation or restoration of residential complexes would also be liable to service tax. Such services provided in relation to residential complexes which are in existence before the levy has come into force and are not new would also be liable to be taxed.
Existing
taxable services whose scope has been expanded
14. Commercial or Industrial
Construction Service
14.1 Construction
of new buildings or civil structures used for commercial or industrial purposes
and repair, alteration or
restoration activities of such buildings and civil structures was already liable
to service tax since 2004. In
this year’s budget, such construction service has been renamed as ‘commercial
and industrial construction
service’ under section 65(25b) of the Finance Act 1994 and renovation of a commercial or industrial building or
civil structure has now been specifically included within the purview of service tax.
14.2 Post construction completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, especially if undertaken as an isolated or stand alone contract, are also specifically included. Thus post construction completion and finishing services are specifically included in the definition of commercial or industrial construction services.
14.3 Construction of pipeline or conduit has been included within the purview of service tax. Thus, the construction of long distance pipeline which was earlier excluded from the coverage of construction services would now be liable to service tax. Repair, alteration, renovation or restoration of pipeline or conduit would now be liable to service tax. This levy would also be applicable for such activities performed on the old pipeline or conduits constructed before this levy has come into force.
14.4 At present, services rendered for construction of commercial or industrial buildings is taxable. However, construction of roads is not liable to service tax. A point has been raised that if a commercial complex is constructed which also contains roads whether the value of construction of roads would be liable to service tax.
14.5 If the contract for construction of commercial complex is a single contract and the construction of road is not recognized as a separate activity as per the contract, then the service tax would be leviable on the gross amount charged for construction including the value of construction of roads.
14.6 When services provided under a contract consist of a number of different elements, a view has to be taken on the basis of the facts and circumstances of each case as to whether the service provider has made a single overall supply or a supply of different services which are to be treated differently.
15. Erection,
commissioning or installation services
15.1 Erection, commissioning or installation of plant, machinery or equipment is already covered under service tax. The scope of this taxable service has been expanded by including specified installation services such as installation of electrical and electronic devices including their wirings and fittings, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work, and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases and travelators [refer clause (39a) of section 65].
16.
Maintenance or repair service
16.1 Maintenance or repair services are liable to service tax under section 65(105)(zzg) of the Finance Act 1994. “Maintenance or repair” is defined under section 65(64) of the Finance Act , 1994.
16.2 Prior to 16/6/2005, such services covered maintenance or repair or servicing of any goods or equipment, excluding motor vehicles. However, since 16/6/2005, services relating to maintenance or management of immovable property (such as roads, airports, railways, buildings, parks, electrical installations and the like) have also been covered under the purview of service tax. Such services would be taxable when provided under a contract or an agreement by any person or by a manufacturer or any person authorized by a manufacturer.
16.3 Maintenance is to keep a machine, building etc. in a good condition by periodically checking and servicing or repairing. While repair is a one time activity, maintenance is a continuous process of which repairing may be incidental or ancillary.
16.4 Prior to 16/6/2005, maintenance or repair carried out under a maintenance contract or agreement was covered under service tax. Repair or servicing carried out under a contract other than a maintenance contract or agreement was not covered within the purview of service tax. Maintenance or repair, including reconditioning or restoration or servicing of any goods or equipment, except motor vehicle (which is taxable under the category of authorized service station), undertaken as part of any contract or agreement (not necessarily maintenance contract or agreement) is now liable to service tax under this category of taxable service. To attract service tax under this category, the contract or agreement need not necessarily be a maintenance contract / agreement.
17.
Broadcasting services
17.1 In the case of radio or TV broadcasting services, the services are subject to tax where the services are effectively used and enjoyed. Multi System Operators (MSOs) are permitted to receive signals from the broadcasting agencies on payment of prescribed amount. Cable operators transmit programmes to customers through cable network after receiving signals from the multisystem operators (MSOs). Prior to 16/6/2005, service tax was leviable on services provided by cable operators to their customers and multisystem operators to cable operators. In this year’s budget, the charges recovered by the broadcasting agencies from the multisystem operator for providing the signals have been specifically made liable to service tax. This completes the service tax chain from the customer to the broadcaster.
17.2 In view of the advent of set top boxes,
the customers can now access the signals directly without the interface of MSO
and cable operators. Service tax is leviable on provision of direct to home
(DTH) signals by the broadcasting agencies to the customers. The liability for
payment of service tax in case of broadcasting agencies or organizations having
their head office outside
18.
Sound Recording
18.1 Recording of sound on a magnetic storage device and its editing were already covered under the ambit of service tax. This taxable service has been expanded to include recording of sound on any media or device such as digital recording and also include services rendered in relation to recording of sound or any audio post production activity.
19.
Video-tape production
19.1 Service tax is already leviable on recording of any programme, event or function on a magnetic tape and includes its editing by a video production agency. This taxable service has been expanded to include recording of any programme, event or function on any media or device such as digital recording and includes services relating thereto and video post-production services.
20.
Authorised Service Station
20.1 Prior to 16/6/2005, the definition of authorized service station covered only service or repair of motor cars, two-wheeled and light motor vehicles by service stations or centres authorized by the manufacturers. A number of motor vehicle manufacturers provide a scheme by which the old vehicles are sold to the customers after reconditioning or restoration. For this purpose, old vehicles are reconditioned or restored by such authorized service stations or centres. Such reconditioning or restoration of an old vehicle was not explicitly covered as a taxable service. Amendments have been made to specifically include reconditioning or restoration of motor cars, two-wheeled and light motor vehicles carried out by the authorized service stations or centers under this service tax.
20.2 Taxable services rendered by authorized service stations in relation to motor cars or two-wheeled motor vehicles was covered under clause (zo) of section 65 (105), while such taxable services performed in relation to light motor vehicles were covered under clause (zzj) of section 65 (105). Amendments have been made in clause (zo) so that taxable services rendered by authorized service stations in respect of motor cars, light motor vehicles or two-wheeled motor vehicles would now be taxable under this clause. Consequently, clause (zzj) has been omitted.
21.
Beauty Parlour Service
21.1 Amendments have been made in the definition of ‘beauty treatment’ so as to cover comprehensively all services provided by beauty parlours including hair cutting, hair dressing and hair dyeing within the purview of service tax.
22. Manpower Recruitment
Service
22.1 Prior to 16/6/ 2005, service tax was leviable on services provided by manpower recruitment agencies in relation to recruitment of manpower. Amendments have been made to levy service tax on temporary supply of manpower by manpower recruitment or supply agencies.
22.2 A large number of business or industrial organizations engage the services of commercial concerns for temporary supply of manpower which is engaged for a specified period or for completion of particular projects or tasks. Services rendered by commercial concerns for supply of such manpower to clients would be covered within the purview of service tax.
22.3 In these cases, the individuals are generally contractually employed by the manpower supplier. The supplier agrees for use of the services of an individual employed by him to another person for a consideration. The terms of the individual’s employment may be laid down in a formal contract or letter of appointment or on a less formal basis. What is relevant is that the staff are not contractually employed by the recipient but come under his direction.
22.4 Service tax is to be charged on the full amount of consideration for the supply of manpower , whether full-time or part-time. The value includes recovery of staff costs from the recipient e.g. salary and other contributions. Even if the arrangement does not involve the recipient paying these staff costs to the supplier (because the salary is paid directly to the individual or the contributions are paid to the respective authority) these amounts are still part of the consideration and hence form part of the gross amount.
22.5 Gem and Jewellery Export Promotion Council have represented seeking clarification that hiring of skilled artisans for making jewellery does not constitute supply of manpower taxable under “manpower recruitment services”. When the artisans are hired by any organisation or business, directly, without engaging the services of any other person in any manner, in such cases, the artisans are contractually employed by the company. There is no intermediary and hence no consideration is paid to or payable to any intermediary. The service tax would be leviable only when the services of a person are engaged for recruitment or supply of artisans.
23.
Franchise Service
23.1 Prior to 16/6/2005, franchise services were liable to service tax only when the agreement between the franchisor and the franchisee satisfies all of the following conditions [as mentioned in section 65(47)]:
(i) Franchisor grants representational right to franchisee to sell or manufacture goods or provide service identified with the franchisor;
(ii) Franchisor provides expertise in business operation, know how, quality control etc. to the franchisee;
(iii) Franchisee pays fees to the franchisor;
(iv) The franchisee is under an obligation not to engage in selling goods or providing services identified with any other person.
23.2 To make the coverage of franchise service more comprehensive, effective from 16/6/2005, amendments have been made to define “franchise” as an agreement by which the franchisor grants representational rights to franchisee to sell or manufacture goods or provide service or undertake any process identified with the franchisor, by any symbol such as a trade mark, service mark, trade name or logo. No other condition is required to be fulfilled for levy of service tax.
23.3 In view of the amended definition, License Production Agreements where principal allows production of goods bearing his brand name by another person would be covered under the purview of service tax under this category. Similarly, if rights are granted for rendering services identified with the principal on his behalf, such services by the principal to the service recipient would be taxable. Details of franchisees may be obtained from Yellow Pages, website http://franchiseindia.com/ and other advertisements. Field formations may undertake a survey and suitably advise the potential tax payers.
24. Business Auxiliary
Service
24.1 One of the taxable activities prior to amendment by Finance Act, 2005 under business auxiliary service was ‘production of goods on behalf of the client’. The activities that amount to manufacture within the Central Excise Act were not covered within the scope of the taxable service. Amendments have been made to define this taxable activity as ‘production or processing of goods for, or on behalf of, the client’. The condition that only such activities would be liable to service tax which do not amount to manufacture under Central Excise Law would, however, continue.
24.2 A point was raised whether ‘production of goods on behalf of the client’ covers situations where the service provider undertakes job work for the client. In view of the amendment, production or processing (not amounting to manufacture) done either for the client or on behalf of the client would be liable to service tax.
24.3 Another taxable activity covered under business auxiliary service is ‘procurements of goods or services, which are inputs for the client’. In this case, the term ‘inputs’ had not been specifically defined in the Finance Act, 1994. The scope of the term input has been clarified by defining input ( under Explanation in section 65(19) of the Finance Act, 1994) for the purpose of this taxable activity as ‘inputs’ means all goods or services intended for use by the client. Thus, services rendered for procurement of any goods or services intended for use by the client would be taxable. This definition of input is different from the definition of input under Cenvat Credit Rules.
24.4 Services provided by commission agents are specifically included within the scope of business auxiliary service. However, the term ‘commission agent’ was not defined in the Finance Act, 1994. Definition of ‘commission agents’ has been provided in Explanation (a) in section 65 (19) of the Finance Act.
25. Outdoor Catering
Service
25.1 Service tax is already leviable on the services provided by an outdoor caterer. Prior to 16//6/05, outdoor caterer was defined as a caterer providing catering services “at a place other than his own”. Doubts were expressed about the scope of the term “at a place other than his own” where the caterer provides catering service from a premises provided by the recipient of the service, on rent. In such cases, whether the place is to be treated as the place owned by the caterer and therefore the services are not subject to service tax or the place is to be treated as not owned by the caterer and therefore subject the services to service tax. To remove the doubt, the present definition of “outdoor caterer” has been modified so as to provide that “outdoor caterer” includes caterer engaged in providing services in connection with catering at a place provided by way of tenancy or otherwise by the person receiving such services.
26. Important
Legislative Changes
26.1 An Explanation has been inserted in section 65(105) of Finance Act, 1994 as follows:
26.2 According
to rule 2(1)(d)(iv) of Service Tax Rules, 1994 taxable
services received from a non-resident were taxable
in the hands of the recipient receiving such taxable services in
26.3 For
this purpose, the service provider should have established his business or has
a fixed establishment from
which the service is provided or has his permanent address or usual place of
residence in a country other
than
26.4 A fixed establishment is an establishment other than the business establishment. It should have both the technical and human resources necessary for providing or receiving services permanently present. A business may have several fixed establishments including a branch. If there is no business or other fixed establishment in any country and the business is a limited company or a other corporate body, it belongs wherever it is legally constituted.
26.5 Individuals receiving services are treated
as belonging in the country where they have their usual place of residence. An
individual has only one usual place of residence at any point in time.
Individuals are normally resident in the country where they have set up home
with their family and are in full time employment. If either the provider of
services or recipient of services have establishments in more than one country,
the establishment most directly connected with the particular service would be
the deciding factor. These provisions are intended to take care of taxable
services where the service provider is located outside
26.6 Rule 2(1)(d)(iv) of Service Tax Rules, 1994 has been amended in view of the above Explanation vide notification No. 23/2005-Service Tax, dated 7th June, 2005.
26.7 Charging service tax from the recipient when the service is provided by a non-resident is a well accepted international practice. This was enunciated in Rule 2(1)(d)(iv). In this year’s budget, for removal of doubts, suitable explanation has been made in section 65(105) of the Finance Act in this regard (as reproduced in para 26.1).
26.8 In cases where services are provided by a
service provider who is situated outside
27. Amendments have been made in section 65(105), section 67 and rule 6 of Service Tax Rules, 1994 to link payment of service tax with the receipt of payment for the taxable services provided or advance payment received towards taxable services to be provided in future. When payments relatable to taxable services are received during the course of provision of service, service tax is liable to be paid to the extent of receipt of payment. In other words, a person is liable to pay the tax as soon as the consideration towards the taxable services is received.
27.1 In case of continuous supply of services (such as construction services) which are provided for a period of time and the consideration (payment), the whole or part of it, is determined as payable, periodically from time to time, the services are treated as provided separately and successively each time the payment is due or each time the payment is received by, the service provider.
27.2 However, when advance payment is received for a service which is non-taxable at the time of receipt of payment but becomes taxable during the course of provision of service, such payments would have to be apportioned appropriately between the two periods and that part of service provided on or after the service becomes taxable service, is only liable for service tax. Similarly, when payment is received in advance for services to be provided but subsequently the services are not actually provided, then in such cases service tax paid is liable to be refunded.
28. Prior to amendment of sections 69 and 70 by the Finance Act, 2005, only the ‘person liable to pay the service tax’ was required to get registered with the Department and required to submit periodical returns submit statutory returns. Thus, a person who was not liable to pay service tax was not required to get registered with the Department. It was felt that in certain instances, though the person may not be liable to pay service tax, for the sake of accountability, such person needs to get registered with the Department.
28.1 Amendments have been made in sections 69 and 70 to incorporate the enabling provisions for registration and filing of return by Input Service Distributors and small service providers whose aggregate value of taxable service exceeds Rs. 3 lakhs per annum. Rule making power in this regard has also been taken under section 94 of the Finance Act.
Amendments
in Service Tax Rules
29. An assessee has to register all locations from where taxable services are provided, or opt for one single registration. Amendments have been made to Rules 4(2) and 4(3) of the Service Tax Rules, 1994 to facilitate more than one centralized registration, i.e. more than one office of an assessee such as his zonal or regional office depending upon their centralized billing or accounting systems.
29.1 In view of the amendment, if a bank has its head office at Mumbai and regional offices at Bhopal, Jaipur and Bangalore and the bank has centralized billing or centralized accounting facilities available at each of these regional offices, then the bank, at its option, can get each of these regional offices registered (and not only the Mumbai office) for the purpose of discharging the service tax liability.
29.2 The centralized registration granted to such premises or offices prior to 1.4.2005 would not be affected by this amendment unless an assessee at his option wants an amendment to the registration scheme opted by him.
29.3 If an assessee does not have a centralized billing or centralized accounting system, he would be required to get each of his premises registered for discharging the service tax liability.
29.4 Prior to the amendment, the Commissioner of Central Excise was empowered to grant registration in cases of centralized accounting system, provided he is satisfied that such registration would not be detrimental to the interest of revenue. This led to procedural difficulties as the Commissioner of Central Excise found it difficult to grant centralized registration to service providers who had their sub-ordinate offices outside his jurisdiction, while at the same time ensuring that the interest of revenue is safeguarded.
29.5 Now the authority to grant such centralized registration has been clearly spelt out. The Commissioner of Central Excise would grant centralized registration only if all the premises or offices, including the premises or office from where centralized accounting or centralized billing is done and all its sub-ordinate offices (for which such centralized accounting or centralized billing is done) are located within the jurisdiction of such Commissioner of Central Excise. If these offices or premises are outside the jurisdiction of Commissioner of Central Excise but within the jurisdiction of Chief Commissioner of Central Excise, in those cases, the jurisdictional Chief Commissioner would grant centralized registration. Further, if these offices or premises fall within the jurisdiction of more than one Chief Commissioner of Central Excise, the centralized registration would be granted by the Director General of Service Tax, Mumbai.
30. Miscellaneous Issues
30.1 A threshold exemption scheme has been introduced in this year’s budget (effective from 1.4.2005) exempting from service tax aggregate value of taxable services not exceeding four lakh rupees received by the service provider during a financial year. A point has been raised whether payments received after 1.4.2005 towards the services provided prior to 1.4.2005 would be included while computing this threshold value of Rs. 4 lakhs.
30.1.1 The exemption is related to first payments received in a financial year irrespective of the actual date of provision of services. Thus, the payments received after 1.4.2005 even if they relate to taxable services provided prior to 1.4.2005, will be taken into account for the purpose of computation of the threshold limit.
30.2 At present exemption from the gross amount charged (abatement) has been prescribed for certain taxable services such as construction and transport of goods by road. However, abatement scheme is not applicable to other than specified taxable services.
30.2.1 A point has been raised about application of abatement scheme in case of single provision of service which consists both category of taxable services, in such cases, what portion of the gross contract would get the benefit of abatement.
30.2.2 In all such cases, it is required to take a view as to whether the taxable service provided is a single service or multiple supply of services and thereafter classify the service provided as per the provisions of section 65A of the Finance Act, 1994 which lays down principles for classification of services. The benefit for abatement would be extended only if the taxable service is classifiable under the category for which abatement scheme is applicable.
31. Goods Transport
Agency
31.1 An abatement of 75% in taxable service of goods
transport by road is available on the condition that the goods transport agency
has not availed credit on inputs and capital goods used for providing taxable
service and has also not availed benefit of notification No. 12/2003-Service
Tax dated 20.6.2003 (vide Notification No. 32/2004-Service Tax, dated
3.12.2004). It has been requested that in cases where liability for tax payment
is on the consignor or consignee, the procedure as to how it should be
confirmed by such consignor or consignee that the goods transport agency has
not availed credit or benefit of notification No. 12/2003-Service Tax may be
prescribed. In such cases it is clarified that a declaration by the goods
transport agency in the consignment note issued, to the effect that neither credit
on inputs or capital goods used for provision of service has been taken nor the
benefit of notification No. 12/2003-Service Tax has been taken by them may
suffice for the purpose of availment of abatement by the person liable to pay
service tax.
32. Exemption to gem and
jewellery sector
32.1 Notification No.21/2005-Service Tax, dated 7.6.2005 exempts the taxable services of “production or processing of goods for, or on behalf, of a client” referred to in sub-clause (v) of clause (19) of section 65 of the Finance Act, 1994, provided by a commercial concern, in the course of manufacture of cut and polished diamonds and gem stones or plain and studded jewellery of gold and other precious metals. However, other taxable services, such as, supply of manpower, banking and other financial services, other business auxiliary services, provided in the course of manufacture of cut and polished diamonds and gem stones or plain and studded jewellery of gold and other precious metals, are leviable to service tax and no exemption for these services is provided. All taxable services received from abroad by an Indian recipient in relation to these goods are held to be liable to be taxed under “Reverse Charge ” norms.
33. Taxable services received from abroad by
a person belonging to
34. Exemption to
shipping industry
34.1 Indian Ship Owners Association sought
exemption from the levy of service tax on all taxable services received and
consumed outside
34.2 The exemption is applicable only to those
specified taxable services provided in relation to handling of ships in a port
outside
34.3 It may be noted that there is a distinction between a vessel and a ship. Vessel includes any ship, boat, sailing vessel or other description of vessel used in navigation. However, ship does not include a sailing vessel. Barges and rigs are only sailing vessels and do not fall under the category of ships. The term ship is defined in the Merchant Shipping Act, 1958. The exemption is applicable only to ships and not for vessels other than ships. Vessels going outside the country for dry-docking (maintenance or repairs) are not eligible for the exemption.
34.4 In the case of chartered ships, ships are used by the charterer but not owned by the charterer. Indians, chartering ships, are required to take licenses, unless specifically exempted, under section 406 of the Merchant Shipping Act, 1958. Vessels registered under the Coasting Vessels Act, 1838 or Inland Vessels Act, 1917 are also authorized to touch any ports in neighbouring countries. The benefit of exemption is available in such cases also.
34.5 It may be noted that the service tax is leviable on taxable services, other than specifically mentioned in the notification, received by the Indian shipping companies from abroad, under the reverse charge method from the Indian recipient of taxable services.
35. To avail relief from service tax on export
of taxable services, taxable services exported are to be delivered outside
36. Service providers who have opted for centralized registration may, at times, have difficulty in accurately computing their tax liability by the due date of payment. Facility has been extended to such service providers to make suo moto adjustments of the excess amount paid, if any, and utilize the excess amount for payment of service tax for the subsequent period. Rule 6 of the Service Tax Rules, 1994 is amended for this purpose vide notification No. 23/2005-ST dated 7/6/2005.
37. The above explanation of various changes and provisions of law is only for purpose of guidance to facilitate understanding and implementation of various provisions. It is not a part of the law and does not override it. Adequate care may be taken to carefully read the relevant provisions of law.
38. All possible assistance and facilitation may be provided to providers of such services who have been subjected to the above changes, so that the implementation of these new levies or other changes is smooth and the tax payers do not face any problem in this regard.
R. Sekar
Joint Secretary (TRU)
10th August, 2005
F.No 341/31/2005-TRU
Government of
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Tax Research Unit
Subject:
Power of Adjudication of Central Excise Officer in cases related to service
tax.
Attention is invited to Board’s Circular No. 75/5/2004-ST dated 03.03.2004 which specifies that only Assistant Commissioner or Deputy Commissioner of Central Excise is empowered to issue a demand notice and adjudicate such notice under section 73 of the Finance Act, 1994 (hereinafter referred to as the said Act).
2.1 With the objective of enabling expeditious adjudication of service tax cases, section 73 of the said Act was amended vide Finance Act, 2005, whereby the words “Assistant/Deputy Commissioner of Central Excise” were substituted by the words “Central Excise Officer”. Section 83A was also inserted in the said Act for the purpose of conferring powers on the Central Excise Officer for adjudging a penalty under the provisions of the said Act or the rules made thereunder. The above provisions came into force with the enactment of Finance Bill, 2005 on 13th May, 2005. Board has specified monetary limits for adjudication of cases under section 83A of the said Act vide notification No. 30/2005- Service Tax dated 10th August, 2005. The monetary limits are as follows:
Table I
|
S.No |
Central Excise Officer |
Amount of service tax or CENVAT credit specified in a notice for the purpose of adjudication under section 83A |
|
(1) |
(2) |
(3) |
|
(1). |
Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise |
Not exceeding Rs. 5 lakhs |
|
(2). |
Joint Commissioner of Central Excise |
Above Rs. 5 lakhs but not exceeding Rs. 20 lakhs |
|
(3). |
Additional Commissioner of Central Excise |
Above Rs. 20 lakhs but not exceeding Rs. 50 lakhs |
|
(4). |
Commissioner of Central Excise |
Without limit. |
2.2 It has also been decided by the Board to have uniform monetary limits for the purposes of adjudication under section 73 and section 83A of the said Act. The monetary limits for the purpose of adjudication under section 73 are as specified in the Table below:
Table II
|
S.No |
Central Excise Officer |
Amount of service tax or CENVAT credit specified in a notice for the purpose of adjudication |
|
(1) |
(2) |
(3) |
|
(1). |
Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise |
Not exceeding Rs. 5 lakh |
|
(2). |
Joint Commissioner of Central Excise |
Above Rs. 5 lakhs but not exceeding Rs. 20 lakhs |
|
(3). |
Additional Commissioner of Central Excise |
Above Rs. 20 lakhs but not exceeding Rs. 50 lakhs |
|
(4). |
Commissioner of Central Excise |
Without limit |
2.3 In addition to the above, the Board has
decided that-
|
(i) |
the monetary limits specified in the above Tables for adjudication of service tax cases shall be irrespective of whether or not such cases involve fraud, collusion, willful mis-statement, suppression of facts or contravention of any of the provisions of the said Act or the rules made thereunder with an intent to evade payment of service tax and whether or not extended period has been invoked. |
|
(ii) |
those cases where there is no alleged failure to pay or evasion/avoidance of service tax or utilization of CENVAT credit shall be adjudicated by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise. |
|
(iii) |
Henceforth, a notice to show cause under the provisions of the said Act or the rules made thereunder shall be approved in writing and signed by the Central Excise Officer who is competent to adjudicate the said notice. |
|
(iv) |
Where simultaneously different cases involving the same issue are due to be adjudicated in a Commissionerate, all such cases may be adjudicated by the Central Excise Officer competent to decide the case where the service tax or CENVAT credit involved is of the highest amount. |
|
(v) |
For cases where the appellate authority remands the case for de-novo adjudication specifically mentioning the authority that has to adjudicate the case, then such authority specified in the said appellate order should adjudicate such cases. Where the appellate authority does not specifically mention the authority who has to adjudicate the case, then it should be decided by the authority who passed the said remanded order. The above specified monetary limits will not be applicable in such cases. |
|
(vi) |
All pending notices to show cause shall be disposed of in terms of this Circular. However, in those cases where the personal hearing has been completed, orders will be passed by the adjudicating authority before whom the hearing has been held. Such orders should normally be issued within a month of the date of completion of the personal hearing. |
3. With the issuance of this circular, Circular No. 75/5/2004-ST dated 03.03.2004 is hereby rescinded.
4. Field formations may be suitably informed
5. A suitable trade notice may be issued.
6. Hindi version will follow.
F.No 341/31/2005-TRU
(Arvind Madhavan)
Technical Officer (TRU)
Tel: 011-23092037
Fax: 011-23093037
17th December, 2004
F.No.341/18/2004-TRU (Pt.)
Government of
Ministry of Finance
Department of Revenue
(Tax Research Unit)
*****
In the Budget 2004, it was proposed to levy service tax on services provided by a goods transport agency in relation to transport of goods by road.
|
2. |
For this purpose vide Finance (No.2) Act, 2004, a sub-clause (zzp) was inserted in clause 105 of section 65 of the Finance Act, 1994, defining taxable service as any service provided to a customer, by a goods transport agency, in relation to transport of goods by road in a goods carriage. |
||
|
|
2.1 |
The definitions of “goods carriage” and “goods transport
agency” were also provided by inserting clause 50a and 50b in the Finance Act,
1994 as follows: |
|
|
|
|
(50a) “goods carriage” has the meaning assigned to it in clause (14) of section 2 of the Motor Vehicles Act, 1988; and |
|
|
|
|
(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. |
|
|
3. |
In pursuance to an agreement dated 27th August, 2004 between the Government and representatives of the transport industry, a Committee was set up to look into appropriate mechanism/modalities for collection and payment of service tax. It was instructed vide letter issued from F. No. B2/8/2004-TRU dated 10.9.2004 that no tax would be payable by the goods transport agency till such time the Government comes out with the relevant rules/ notifications prescribing the modalities for levy and collection (refer para 26 of the letter). |
||
|
4. |
The Committee has submitted its report on 27th
October, 2004. Taking into account the recommendations of the Committee,
Notification Nos. 32 to 35/2004-Service Tax all dated 3rd December, 2004 have
been issued prescribing the modalities for levy and collection of service tax
in respect of transport of goods by road. These notifications would be
effective from 1st January, 2005. |
||
|
|
4.1 |
Notification No. 32/2004-Service Tax, dated 3rd December,
2004 exempts service tax on seventy-five percent of the gross amount charged in
respect of taxable service provided by a goods transport agency to a
customer, provided that credit of duty paid on inputs or capital goods used
for providing such taxable service is not taken and benefit of notification
No. 12/2003-Service Tax, dated 20th June, 2003 is not availed of by the goods
transport agency. |
|
|
|
4.2 |
Notification No. 33/2004-Service Tax, dated 3rd December,
2004 exempts service tax on taxable service provided by the goods transport
agency to a customer, in relation to transport of fruits, vegetables, eggs or
milk by road in a goods carriage. |
|
|
|
4.3 |
Notification No. 34/2004-Service Tax, dated 3rd December, 2004 exempts the taxable service provided by a goods transport agency to a customer, from the whole of service tax, in such cases where,- |
|
|
|
|
(i) |
the gross amount charged on consignments transported in a
goods carriage does not exceed rupees one thousand five hundred; or |
|
|
|
(ii) |
the gross amount charged on an
individual consignment transported in a goods carriage does not exceed rupees
seven hundred fifty. |
|
|
|
|
For the purpose of this notification, “an individual
consignment” would mean all goods transported by a goods transport agency by
road in a goods carriage for a consignee. |
|
|
4.4 |
Notification No. 35/2004-Service Tax, dated 3rd
December, 2004 prescribes that the person making payment towards freight would
be liable to pay the service tax, in case the consignor or the consignee of
the goods transported is one of the following,- |
|
|
|
|
(i) |
Factory registered under or governed by the Factories Act; |
|
|
|
(ii) |
Company established by or under the Companies Act; |
|
|
|
(iii) |
Corporation established by or under any law; |
|
|
|
(iv) |
Society registered under Societies Registration Act or
similar law; |
|
|
|
(v) |
Co-operative society established by or under any law; |
|
|
|
(vi) |
Dealer of excisable goods, registered under the Central
Excise Law; or |
|
|
|
(vii) |
Any body corporate established, or a partnership firm
registered, by or under any law. |
|
|
4.5 |
In cases other than those mentioned in para 4.4 above, the service tax is to be paid by the Goods Transport Agency. The Goods Transport Agencies are required to issue a consignment note (even in cases covered under para 4.4) other than in cases where the service in relation to transport of goods by road is wholly exempted from service tax. The consignment note should be serially numbered and should contain the names of the consignor and consignee, registration number of the goods carriage used for transport of goods, details of goods transported, place of origin and destination and person liable for paying service tax. |
|
|
5. |
To ensure smooth implementation of the levy on the goods
transport agency following instructions are issued: |
||
|
|
5.1 |
According to provisions of section 69 of the Finance Act, 1994, requirement of registration is limited to persons liable to pay service tax. Thus those goods transport agencies, which are not liable to pay any service tax, are not required to be registered under the service tax rules. |
|
|
|
5.2 |
Permission to goods transport agency for centralized registration under rule 4(3A) of Service Tax Rules, 1994, should not be denied unless there is a substantial reason to believe that it would lead to evasion of service tax. In case of centralized registration, all verification or audit checks should be carried out through registered office only. |
|
|
|
5.3 |
No vehicle should be stopped en route for verification of service tax compliance unless there is specific information/ intelligence about deliberate evasion of service tax. Such verification, if carried out, should be under explicit authorization, on case-to-case basis, from an officer not below the rank of a Commissioner. In such cases, the vehicle and the goods should be released immediately after obtaining photocopy of transport documents. Any further verification relating to service tax provisions should be made with the office registered with the Department |
|
|
|
5.4 |
In case the central office of a transport company is registered with the department for payment of service tax, no independent enquiries, verification or audit checks should be carried out of the subordinate offices of such goods transport agency, unless it is based on information/ intelligence about deliberate evasion, and such checks/ verification is authorized by an officer not below the rank of a Commissioner. All queries, notices or scrutiny of records, if required, should only be made through the registered office by the departmental offices having jurisdiction over such central office. The registered offices, would however, be subjected to audit checks as per the guidelines of the government. |
|
|
|
5.5 |
Records pertaining to the period prior to imposition of service tax levy on the goods transport should not be called for verification unless the same are in connection with cases booked for violation of the provisions of customs or central excise laws against customers of the transporters. |
|
|
|
5.6 |
In case of omission in payment of service tax or procedural lapses by persons liable to pay service tax on the goods transport by road, committed before 31st December, 2005, the consequences should be limited to recovery of tax with interest payable thereon. No penalty should be imposed on such defaulters unless the default is on account of deliberate fraud, collusion, suppression of facts or wilful mis-statement or contraventions of the provisions of service tax with intent to evade payment of service tax. |
|
|
|
5.7 |
If service tax due on transportation of a consignment has been paid or is payable by a person liable to pay service tax, service tax should not be charged for the same amount from any other person, to avoid double taxation. |
|
Yours faithfully,
R. Sekar
Joint Secretary (TRU)
Issues pertaining to Service Tax – regarding the Finance Bill,2004
The Finance Bill (No.2), 2004 has been enacted on 10.09.2004. With the enactment of the Finance Bill, The following new services have come under the service tax levy,-
· Business exhibition
services
· Airport services
· Transport of goods by
air
· Survey and exploration
of minerals
· Opinion poll services
· Intellectual property
services (other than copyrights)
· Forward contract
services
· Pandal or shamiana
services
· Outdoor catering
services
· TV and radio programme
production services
· Construction services
(commercial and industrial buildings or civil structures)
· Travel agents (other
than air/rail travel agents)
· The following taxable
services get expanded to include,-
· Commission and
installation service to include erection service
· Stock brokers to
include sub-brokers
· Cable operators to
include multi system operators
· Business auxiliary
service to include activities relating to procurement of inputs, production of
goods (not amounting to
manufacture) or provision of services on behalf of a client.
· Financial services to
include some more specified financial services. Such services provided by
non-banking financial company,
body corporate or any other commercial concern are
also being subjected to service tax.
· Tour operators to
include such package tour operators who organize tours involving different
modes of transport.
· The risk cover in life
insurance becomes subject to levy of service tax.
The rate of service tax on all taxable services, including the new and expanded
services becomes 10%.
The education Cess of 2% of the service tax would be leviable on taxable
services.
The scope of these changes is explained in the following paragraphs.
Education Cess on taxable services:
Education cess on taxable services is imposed under section
91 read with section 95 of the Finance (No.2) Act, 2004. The cess would be 2%
of the service tax levied and collected. Therefore, fully exempted taxable
services would not be subjected to cess. In case of a partial exemption, say by
way of abatement, the cess would be calculated on the net tax paid and not on
the entire amount of tax that would have been payable, but for the exemption.
Business exhibition services.
4.1 Business exhibition
service is a service rendered to an exhibitor by an organizer of a business
exhibition that intends to
market, promote, advertise or show case products or services for growth in
business of the producers or providers
of such products or services. Thus, organizers of events such as trade fairs,
road shows, fashion shows, display
show-cases kept in airports, railway stations, hotels etc. would be covered
under this new levy. A display of consumer
goods in shops or shopping centers for customers to select and purchase would
normally not attract any service
tax, as normally no separate charges are collected by the shop-keepers for
displaying such goods. However,
in case an amount is collected for merely displaying an item, the same would be
chargeable to service tax.
4.2 While event management service
(a currently taxable service) also relates to organizing such events, but in
that case, the services are
rendered to the organizer by an event manager in relation to planning,
promoting, organizing etc. Thus,
an organizer of a business exhibition is not covered under Event Management
Services, but would be covered
under the new levy of ''Business Exhibition Services''. Similarly, while
services rendered in relation to a circular,
label, documents, hoardings or any other audio visual representation of a
product or service falls under ''advertisement
services'', the services relating to actual exhibition or display of the
product or services would fall under
the category of ''Business Exhibition Services''.
Airport services:
Services provided in an airport or civil enclave, to any
person by Airports Authority of India (AAI), a person authorized by it, or any
other person having charge of management of an airport are taxable under this
category. This includes variety of services provided to airlines, as well as
for cargo and passenger handling such as security, transit facilities, landing
charges, terminal navigation charges, parking and housing charges and route
navigation facility charges. It would be on the gross amount chargeable by AAI
or other such authorized person. Thus, charges such as royalty, license fees
etc. collected by AAI from other service providers at the airport such as
ground handling, security, common user terminal services etc. are chargeable to
service tax. However, in case a part of airport/ civil enclave premises is
rented / leased out, the rental/lease charges would not be subjected to service
tax, as the activity of letting out premises is not rendering a service.
Transport of goods by air:
Services provided by an aircraft operator (i.e. commercial
concern like an airlines) in relation to transport of goods by an aircraft
falls under this category. Thus, in addition to the actual air-freight charges,
all charges collected towards storing, handling, loading/unloading (done in
relation to air transportation of cargo) by an airlines are also chargeable to
this levy.
Survey and exploration of minerals:
The service tax would be leviable when the service of survey
and exploration of minerals is provided by any person to a customer. The survey
and exploration may result in locating ores, crude etc. Subsequent to survey
and exploration, the mineral is extracted and transported for refining,
processing and production. The service tax under this category would be limited
to the services rendered in relation to survey and exploration only and not on
the activity of actual extraction after the survey and exploration is complete.
The transport, refining, processing or production of the extracted products
would also be out of the ambit of service tax. Activities such as seismic
survey, collection/ processing/interpretation of data and drilling or testing
in relation to survey and exploration would, however, fall within the ambit of
taxable service.
Opinion poll services:
Services provided by an opinion poll agency (i.e. any person
providing that service) in relation to opinion polls are taxable under this category.
Opinion poll means securing information on public opinions regarding social,
economic, political and other issues. The term ''securing'' would include
activities like selecting the target groups, preparing questionnaires,
gathering opinions from such target groups, collating their responses, drawing
conclusions or analyzing trends and preparing reports based thereon. A similar
service i.e. ''market research agency service'' is taxable since 1998. However,
that service includes conducting of market research in relation to products,
services and utilities. Opinion polls conducted to secure information on
economic issues do not include such market researches about specific products,
services or utilities. Therefore, obtaining opinion of general public on
economic issues like price rise, reaction of people to certain government or
corporate policies etc., would fall under the category of opinion poll services
while information gathered in relation to specific products, services etc.
would fall under ''market research agency service''.
Intellectual property services (other than copyrights):
9.1 Intellectual
property emerges from application of intellect, which may be in the form of an
invention, design, product, process, technology, book, goodwill etc. In
9.2 A
permanent transfer of intellectual property right does not amount to rendering
of service. On such transfer, the person selling these rights no longer remains
a ''holder of intellectual property right'' so as to come under the purview of
taxable service. Thus, there would not be any service tax on permanent transfer
of IPRs
9.3 In
case a transfer or use of an IPR attracts cess under Section 3 of the Research
and Development Cess Act, 1986, the cess amount so paid would be deductible
from the total service tax payable. (refer
notification No.17/2004-ST, dated 10.09.2004).
Forward contract services:
As per the provisions of Forward Contract (Regulation) Act,
1952, a forward contract is a contract for delivery of goods, which is not a
ready delivery contract. For commodities notified under the Act, forward
contracts can be entered into only through members of association recognized
under that Act. For other commodities, future trading can be done through
associations registered with Forward Market Commission. The levy of service tax
under this category is on the services provided by members of such associations
(commonly called as commodity exchanges) to any person in relation to forward
contracts.
Pandal or shamiana services and Outdoor catering services
11.1 A person providing services,
directly or indirectly, in connection with preparation, arrangement, erection
or decoration of a pandal or
shamiana (i.e. a place specially prepared for organizing official, social or
business functions) is a
''pandal or shamiana contractor''. Service provided by him in any such manner,
including that of a caterer is liable to service tax
under the category of ''Pandal or Shamiana Contractor service''.
11.2 Similarly, catering services
provided by a caterer at a place other than his own place is taxable as ''outdoor catering
service''.
11.3 The following
abatement/exemptions have been allowed in respect of,-
(A) Outdoor caterer:
50% abatement, when bill
includes charges for food also (refer notification no. 20/04-ST, dated
10.09.2004) Full exemption, to
caterers providing service in academic institutions, medical establishments or
railway trains (refer notification
no.19 & 21 /04-ST, both dated 10.09.2004)
(B) Pandal Shamiana: 30% abatement, when bill includes
charges for food also (refer notification no.22/04-ST, dated 10.09.2004)
11.4 It is clarified that
pandal/shamiana services provided for pure religious ceremonies or
congregation, for example, for worship
of Gods/ Goddesses, are not liable to service tax. It is also clarified that in
case a café, hotels, restaurants etc. delivers food to
home and no charge, other than that for the cost of the foods, is charged (i.e.
free home delivery) no service tax
is leviable.
TV and radio programme production: Services provided by a TV or radio programme
producer have been brought under the purview of taxable service. Any programme
produced (or any service rendered in connection of producing such programme) by
a commercial programme producer, for telecasting/ radio transmission by a
broadcaster would fall under this category of taxable service including cases
where a programme is sold to the broadcaster. However, a service rendered by an
employee of the service receiver (i.e. the broadcaster) or by an amateur
photographer who, say, shoots a footage for himself,
would not be charged to service tax.
Construction services (commercial and industrial buildings or civil
structures)
13.1 Services
provided by a commercial concern in relation to construction, repairs,
alteration or restoration of such buildings,
civil structures or parts thereof which are used, occupied or engaged for the
purposes of commerce and industry are covered under this new levy.
In this case the service is essentially provided to a person who gets such
constructions etc. done, by a building or civil contractor. Estate builders who
construct buildings/ civil structures for themselves (for their
own use, renting it out or for selling it subsequently) are not taxable service
providers. However, if such
real estate owners hire contractor/ contractors, the payment made to such contractor would be subjected to
service tax under this head. The tax is
limited only in case the service is provided by
a commercial concern. Thus service provided by a laborer engaged directly by
the property owner or a contractor
who does not have a business establishment would not be subject to service tax.
13.2 The
leviability of service tax would depend primarily upon whether the building or
civil structure is ''used, or to be
used'' for commerce or industry. The information about this has to be gathered
from the approved plan of the building or civil construction. Such
constructions which are for the use of organizations or institutions being
established solely for educational, religious, charitable, health, sanitation
or philanthropic purposes and not for the
purposes of profit are not taxable, being non-commercial in nature. Generally,
government buildings or civil
constructions are used for residential, office purposes or for providing civic
amenities. Thus, normally government constructions would not be taxable.
However, if such constructions are for commercial
purposes like local government bodies getting shops constructed for letting
them out, such activity would be
commercial and builders would be subjected to service tax.
13.3 In
case of multi-purpose buildings such as residential cum commercial construction,
tax would be leviable in case such immovable property is treated as a
commercial property under the local/ municipal laws.
13.4 The
definition of service specifically excludes construction of roads, airports,
railway transport terminals, bridge, tunnel,
long distance pipelines and dams. In this regard it is clarified that any
pipeline other than those running within an industrial and commercial
establishment such as a factory, refinery and similar industrial tablishments
are long distance pipelines. Thus, construction of pipeline running within such
an industrial and commercial establishment is within the scope of the levy.
13.5 The
gross value charged by the building contractors include
the material cost, namely, the cost of cement, steel,
fittings and fixtures, tiles etc. Under the Cenvat Credit Rules, 2004, the
service provider can take credit of excise duty paid on such inputs. However,
it has been pointed out that these materials are normally procured from the
market and are not covered under the duty paying documents. Further, a general exemption is available to
goods sold during the course of providing service (Notification No. 12/2003-ST)
but the exemption is subject to the condition of availability of documentary
proof specially indicating the value of the goods sold. In case of a composite
contract, bifurcation of value of goods sold is often difficult. Considering
these facts, an abatement of 67% has been provided in case of composite
contracts where the gross amount charged includes the value of material cost. (refer notification No.15/04- ST,
dated 10.09.2004) This would, however, be optional subject to the condition
that no credit of input goods, capital
goods and no benefit (under notification no. 12/2003-ST) of exemption towards
cost of goods are availed.
Extension of service tax on installation and commissioning, to erection
services: Service tax was levied on commissioning and installation of plant,
machinery and equipment w.e.f. 1.7.2003. The general practice is that ''erection,
commissioning and installation'' are contracted as a composite package. There
have been a number of doubts and queries regarding the distinction between
erection and commissioning/installation. Erection would refer to the civil
works to installation/commissioning of a plant or machinery. In this year''s
budget, the scope of service tax under installation and commissioning is being
extended to include erection also. Erection involves civil works, which would
otherwise fall under the category of construction services. However, in case of
a composite contract for erection, commissioning and installation, the erection
charges would be taxed as part of this category of service.
Extension of service tax on air travel agents and rail travel agents to other travel
agents: At present, service tax is leviable on air travel agents and rail
travel agents. Travel agents of other modes of transport (road, water) are not
covered under service tax. The scope of service tax has been extended to
include all travel agents. The taxable service is the service provided by
travel agent in relation to the booking of passage for travel by modes other
than air and road. The value of taxable service would be the commission/fee
charged by the travel agent from the customer.
Sub-brokers:
Services provided by brokers, sub-brokers to investors in
connection with sale and purchase of securities listed on recognized stock
exchanges would be subjected to service tax.
Extension of service tax on cable operators to Multi system operators (MSOs):
In cable TV services, broadcast channels transmit television signals to multi
system operators (MSO) who further send them to the cable operator. The
services provided by the MSOs to the cable operators have been made taxable.
Expansion of Business auxiliary
service.
18.1 The scope of an existing taxable
service (i.e. Business Auxiliary Service) has been expanded to include activities relating to procurement
of inputs, production of goods (not amounting to manufacture) or provision of services
on behalf of a client. The tax is leviable only when the service provider is a
commercial concern.
18.2 The pre-budget definition of
Business auxiliary Service covered services, which relate to the sale and marketing side of a business.
However, the auxiliary services which relate to procurements, inventory, production (or provision in case of
services) were not covered. The present definition intends to bring all business auxiliary services relating
to procurement, inventory and production under service tax. Thus, the procurements of input, capital goods
or input services as defined in the CENVAT Credit Rules, by a commercial concern for a client i.e.
a person producing goods or providing services would be now taxable under this category. Similarly, if a
commercial concern produces goods on behalf of the client or provides service on
behalf of a client, such
activities would come under the scope of this service, unless the activity of
service provider amount to
manufacture in terms of the central excise law. The aim of all such activities
is production of goods or provision
of services, the whole or part of which is being carried out by the service
provider (i.e. the agent) on behalf of
the client. Such activities include procurements, productions or service
providing activities done for the client.
18.3 The service tax is, however,
being restricted to only those cases where the service provider is a factory governed by the Factories Act, 1948,
a company established by or under the Companies Act, 1956 or a corporation or a body corporate
established by or under any law, partnership firms (whether or not registered), societies
registered under Societies Registration Act, 1860 or under any law and any
co-operative society established
by or under any law. However, services in relation to agriculture, printing,
textile processing and education
would remain exempt even if provided by such service providers. (refer Notification no.14/04-ST, dated 10.09.2004)
Expansion of banking and other financial services
19.1 The existing taxable service
i.e., ''banking and other financial services'', has been expanded both in terms
of its coverage and the types
of service providers. Financial services would now also include specified
financial services, namely,
lending, issue of pay order, demand draft, cheque, letter of credit, bill of exchange, providing a bank guarantee, overdraft facility, bill discounting, safe
deposit lockers, or safe vaults and operation of bank accounts. The interest amount would, however, remain
excluded from the purview of service
tax. In addition to banking
company, financial institution including a non-banking financing company, body
corporate and any other commercial concern providing financial
services will also be covered.
19.2 The ''interest on loans'' has
been specifically excluded by way of amendment to the provisions relating to valuation (S.67). All such interests
that are in the nature of interests on loans would thus remain excluded from taxable value. Further,
clarifications on these issues would be issued shortly.
19.3 Collection and other bank
charges in relation to taxes / duties collected on behalf of the Union/State Governments and
Extension of tour operator service to package tour operators using different
modes of transport: At present, tour operator service covers package tour
operators also. However, under the present definition, such package tours
attract service tax only if such tours involve modes of transport other than
road (say a combination of air-rail-cab travel). The definition of tour
operator has been suitably expanded. While the existing levy on tour operators
engaged in operating tours in tourist vehicles remains as such, in case of a
package tour (which are planned, scheduled, organized or arranged by tour
operators), the scope of the levy is being extended by removing the limitation
regarding transportation by tourist vehicles only. Such tourist operators would
be subjected to service tax irrespective of the mode of transport used during
such tours. The abatements (notification no.39/97-ST) in case of package tour
operators (providing transportation and accommodation) would remain at 60%.
Life Insurance services:
21.1 In Budget 2004, it has been
decided to levy service tax on that portion of the service which pertains to
risk element. The levy would
not be applicable to such premium of the existing policies, which were paid
before the new levy comes into
force.
21.2 It has been provided that in the
case of composite policies (risk plus saving) life insurer can at his option
pay 1% of the total premium
towards discharge of service tax liability. This shall not be applicable in
case an insurance policy is
towards risk only or where the premium gives details of risk premium and other premium separately.
(refer notification No. 11/04-ST, dated 10.09.2004).
However, those insurance companies who want to pay
tax on risk premium as certified by the Appointed Actuary on a company basis
can do so. The insurance companies
may be allowed to pay monthly service tax provisionally, based on estimates.
The monthly estimated (i.e.
provisional) duty payment for the entire company would be based on a
provisional certificate issued by the
Appointed Actuary, subject to final certification at the end of the year. At
the end of the financial year, when the
sum at risk is calculated and certified by the Actuary, the liabilities would
be finalized and the companies would pay
the balance tax or adjust the excess tax paid.
Vocational and Recreational Coaching Institute: Vocational and recreational
training institutes have been exempted from service tax. (refer
notification No.24/04-ST, dated 10.09.04)
Service tax on IT industry:
Taxable services provided in respect of Enterprise Resource Planning (ERP)
software systems by a management consultant for management of any organization
has been exempted. (refer Notification no. 16/04-ST,
dated 10.09.2004).
23.5 Notification no. 8/2003-ST
exempts services provided by call centres. For this notification, call centres
mean a commercial concern
which provides assistance, help or information, through telephone on behalf of another person. The definition of
call centres has been modified as ''a commercial concern which provides assistance, help or information or
contacts current or prospective customers for sales, telemarketing, payments
through telephone, lease lines, satellite links, mail fax, web chat and using
information systems for monitoring and recording information
on behalf of another person''. (refer to notification
No. 12/04-ST, dated 10.09.2004)
Restriction on availment of
credits and exemptions towards goods sold, in cases where abatements are
allowed.
24.1 In cases of specified services,
like tour operators, rent-a-cab, mandap-keeper providing catering services,
erection, commissioning and
installation etc., abatements are allowed to neutralize the cost of
materials/goods supplied or used
during the course of provision of service. These abatements were allowed when
cross credit of excise duty and
service tax was not available. Service tax like Cenvat is basically a value
added tax which is operated through credit
mechanism. It is being provided that in all such cases, the abatement would be
conditional, subject to non- availment
of input goods and capital goods credit under the new Cenvat Credit Rule, 2004
and also non availment of benefit under
notification no 12/2003-ST. (refer notification No. 12/04-ST, dated 10.09.2004)
The credit of input services would,
however, be available.
24.2 Exemption
no. 12/2003-ST provides that the value of goods and materials sold by the
service provider during the course of providing service shall remain excluded
from value of taxable service subject to production of documentary proof of
value of such sale. It is being provided that benefit of abatement would not be
available to any service provider availing this concession. Also, this
concession would be subject to condition that either no CENVAT credit has been
availed on such goods or if already availed, it is reversed prior to the sale of such goods. ( refer notification No. 12/04-ST, dated 10.09.2004)
Withdrawal of exemption to engineering consultancy services in relation to computer software.:
The exemption to services provided
by a consulting engineer in relation to computer software (notification No.
4/99-ST) has been withdrawn (refer
notification no. 23/04-ST, dated 10.09.2004).
Transport of goods by road
by a goods transport agency:
In pursuance to an agreement between
the Government and representatives of the transport industry, a Committee has been set up to look into appropriate
mechanism/modalities for collection and payment of service tax by commercial concerns and the rules/notifications
will be finalized in consultation with the Committee. The Committee would give
its report within two months.
In terms of the agreement, the tax would be levied and collected in a manner to
be notified. No tax would,
therefore, be payable by the goods transport agency till such time government
comes out with the relevant rules/ notifications
prescribing the modalities for levy and collection.
Many of the services covered
under fresh levies may include activities that were taxable earlier under
different category of taxable
services. While the classification of a taxable service would be in terms of
section 65A of the Finance Act, 1994, it should
be ensured that there is no double taxation and a service is taxed only once
under the appropriate category.
Notification Nos 18 and
25/04-ST dated 10.9.2004 have been issued so as to exempt the payments received
by the service provider before 10th
September, 2004 in respect of new services and expanded services.
The CENVAT Credit Rules, 2004
have been issued allowing credit across goods and services (refer Notification
No.23/04- CE(NT),
dated 10.09.2004).
The above changes may be
immediately brought to the notice of the field formations and the trade. All
possible assistance and
facilitation may be provided to providers of such services who have been
subjected to the above changes, so that the implementation
of these new levies or other changes is smooth and the tax payers do not face
any problem in this regard.
Gautam Ray
Joint Secretary (TRU
Circular
No. 79/9/2004-ST
13th May
2004
F.NO.137/38/2003-CX.4
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Excise & Customs)
Subject: Application of Service Tax on activities of Erection and Commissioning.
I am directed to draw attention to the Circular No. 49/11/2002-ST dated 18.12.2002, whereby it was clarified that the work of Erection and Commissioning is in the nature of services provided by a “Consulting Engineer” and hence taxable under Service Tax. Also in the year 2003, Service Tax was imposed on Commissioning and Installation Service, effective from 1st July 2003. In terms of Circular No. 59/8/2003 dated 20 June 2003, issued from File no. B-3/7/2003-TRU, it was clarified that charges for erection of plant would not be covered under the Commissioning and Installation services.
In the light of above conflicting views, several representations have been received in the Board for clarification as to whether
· the charges for erection would be covered under Service Tax or not?
· the Commissioning or Installation service would be covered under Service Tax under Consulting Engineer service effective from 7.7.1997?
The issue has been examined by the
Board in consultation with the Ministry of Law and Justice and in this regard I
am directed to say that
charges for erection, installation & commissioning are not covered under
the category of Consulting Engineer
Services. Commissioning or Installation service will be separately taxable
under relevant entry and are not chargeable
under Consulting Engineer Services. Accordingly, the clarification
issued vide the Circular No. 49/11/2002-ST dated 18.12.2002 stands modified to this extent.
2. Suitable trade notice may be issued.
3. Hindi version will follow.
MANISH MOHAN
Under Secretary to the Government of
Phone No: 23094558
Circular
No. 78/08/2004-ST
23rd
March 2004
F.No.241/01/2004-CX-4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Sub: - Service Tax on the production of Television serials
Representation have been received in the Board with regard to levy of service tax on the activities undertaken by the television serial producers, who either
(i) sell TV serial episodes to the TV channels
(ii) allow such episodes to be telecasted by the channels in the lieu of procurement of Free Commercial Time (FCT), which is sold by them to advertising agencies for showing advertisements.
2. It appears that in some jurisdiction service tax is being demanded on the services listed at (‘i’) under the category of Videotape Production Services, and in respect of services listed at (‘ii’) under the category of Advertisement Agency Services.
3. The issue has been examined. The taxable service i.e. “video tape production service” is on the process of recording of any programme, event or function on magnetic tapes (including editing thereof). The tax is therefore limited to the technical function of recording or editing what is recorded and not on the entire gamut of production of serials. In case the producer hires a video-grapher or an editor, the payment made fro services would be taxable at the hands of such service providers. However, no tax is leviable on the producers for selling the serial to channel.
4. Similarly, in case of FCT, selling the time allotted to a producer does not fall within the purview of “advertisement service” since this activity is not connected to making, preparation, display or exhibition of advertisement.This is akin to providing space in a newspaper or magazine for publishing an advertisement and has nothing to do with actual presentation of the advertisement.
5. The field formations may suitably be informed.
6.
Trade Notice may be issued for information of the trade.
7.
The receipt of this Circular may kindly be
acknowledged.
8.
Hindi version will follow.
Sanjiv Srivastava
ST
Circular No. 77/07/2004
March 10th, 2004
F. No. 137/04/2004-CX-4
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Subject: Clarification on ambiguity in the provisions of Rule 3(5) of the Service Tax Credit Rules, 2002 –regarding
An issue has been raised seeking clarification on the ambiguity in the provisions of Rule 3(5) of the Service Tax Credit Rules, 2002 which reads that ‘in case the service provider, opts not to maintain separate accounts of input service meant for consumption in relation to rendering of such output service which are chargeable to service tax as well as exempted services or non-taxable services, he shall be allowed to utilize service tax credit for payment of service tax on any output service only to the extent of an amount not exceeding thirty five percent of the amount of service tax payable on such output service’.
2. It is to clarify that input service tax credit can be utilized only to the extent of 35% of the total service tax payable on all the taxable output services.
3. The field formations may suitably be informed.
4. A suitable trade notice may be issued.
5. Hindi version will follow.
Manish Mohan
Under Secretary to the Government of
Deputy Secretary to the Govt. of
Circular No. 76/ 6/ 2004 – ST
3rd March, 2004
F.
No. 137/6/2004-CX-4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Subject: Clarification sought by PHD Chamber of
Commerce and Industry on various difficulties being faced by Service Tax
assessees – Regarding
The Board has received
representation from PHD Chamber of Commerce and Industry with regard to general
difficulties being faced by Service Tax assessees.
The
following points are, therefore, further clarified:-
|
1. |
Penalty for each service under section 75A for delay
in taking single registration for more than one taxable service; & |
|
2. |
Penalty for each service under section 77 for delay
in filing of return by assessee providing more than one taxable service |
|
|
Clarification: As per
statutory provisions only one penalty as prescribed can be imposed. |
|
3. |
Delay in issue of PAN based 15 digit STC/STP Code
and difficulties faced by assessees for seeking STC/STP. |
|
|
Clarification:
The forms for registration for issue of 15 digit
STC/STP code are very simple and do not create any ambiguity. If the allotment
has not been done within three working days in terms of Circular
35/3/2001-CX-4 dated 27/8/2001, the assessees may bring the same to the
notice of the jurisdictional Assistant Commissioner / Deputy Commissioner /
Commissioner of Central Excise who shall immediately issue necessary
directions. |
|
4. |
Insisting on payment of penalty before registration |
|
|
Clarification:
The circular No. 72/2/2004-ST dated 2nd
January, 2004 provides that jurisdictional officer shall accept the declaration
given by the assessee and as per the Rule 4(5) of the Service Tax Rules, 1994
grant the registration within seven days. |
|
5. |
Issue of Show Cause Notice for petty amounts. |
|
|
Clarification
: The matter has been
considered by the Board and it has been decided that for an amount of Rs. One
Thousand and below towards short payment/non-payment of service tax, the
jurisdictional officer should give an opportunity and allow the assessee to
deposit the amount of service tax not paid alongwith interest, if
any. In case the service provider pays the service tax alongwith
interest within period of one month of the default in payment being pointed
out, recourse should be made to section 80 of Finance Act, 1994 as amended
provided the assessee fulfils the conditions therein. However, in other cases
of failure on behalf of Service provider to pay the service tax and interest,
if any, normal procedure shall be followed. |
|
6. |
The field formations may suitably be informed. |
|
7. |
A suitable trade notice may be issued. |
|
8. |
Hindi version will follow. |
Manish
Mohan
Under Secretary to the Government of
Circular No. 75 / 5 /2004-ST
3rd March, 2004
F.
No. 137/ 11 /2004-CX-4
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Subject: Service Tax – Monetary limits and
powers of adjudication of officers of Central Excise in
relation to Service Tax Rules, 1994 – regarding
Kindly refer to Board’s Circular
Nos. 11/5/96 dated 22nd April, 1996 and 30/1/2000 dated 6th
June, 2000 on the above
Mentioned subject.
1. Any orders passed by Addl. Commissioners/Joint Commissioners
can neither be revised (u/s 84) nor can it be appealed
before any appellate authority (u/s 85 and u/s 86). Therefore, in order
to avoid problems of appeals against
the orders passed by Joint Commissioners /Additional Commissioners/
Commissioners of Central Excise, an
amendment was carried out in section 73 of the Finance Act, 1994 on 16.7.2001,
which limited the authority to ACs
/DCs of Central Excise for issuing the Show Cause Notices for short levy of
service tax and also determination of
such short levy by way of adjudication.
2. In view of the above, the matter of
power of adjudication of officers of Central Excise in relation to Service Tax
Rules, 1994 was re-examined and it has now been decided by the Board that
adjudication of all the cases relating to Service Tax may be carried out only
by the jurisdictional ACs /DCs of the Central Excise as per section 73 of the
Finance Act, 1994.
3. The above referred circulars dated
22.4.96 and 6.6.2000 stand withdrawn and superceded.
4. The field formations may suitably be
informed.
5. A suitable trade notice may be issued.
6. Hindi version will follow.
Manish Mohan
Under Secretary to the Government of
Circular No. 74/4 /2004-ST
23rd
January, 2004
F.NO.256/10/2003-CX.4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Subject: Clarification for the maintenance and repair services for Automated Teller Machines (ATMs) - Liability of service tax - Regarding
The Board has received representations seeking clarification with regard to leviability of Service Tax in respect of maintenance & repair of ATMs in terms of Notification no. 20/2003-ST dated 21.8.2003.
2. The matter has been examined in the Board. It is clarified that computers are essentially data processing machines and their function is to process analog or digital data. There may be machines, which use such processed data to perform certain specified functions. These machines may involve processing of data but their principal function is not processing of data per se, but using such processed data for performing independent functions. These are not 'computers' but are computerised machines. ATM is one such machine. For the purposes of Customs Tariff also, whereas computer falls under heading 84.73, ATMs fall under sub-heading 8472.90.
3. In view of the above stated facts, the Board has taken a decision that Automatic Teller Machine is not a 'Computer', 'Computer System' or 'Computer Peripherals' (all of which perform or aid primarily in, data processing per se) and thus their maintenance and repair does not fall under exemption Notification No.20/2003-ST, dated 21st August, 2003. Accordingly such services are liable for service tax.
2. A suitable trade notice may be issued
4. Hindi
version will follow.
Manish Mohan
Circular no. 73/ 3/2004 ST
5th
January, 2004
F.No.159/3/2003-CX.4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Custom
Subject: Levy of Service Tax under category of Clearing & Forwarding Agents in respect of Adhatiyas.
I am directed to say that under Section 65 of Finance Act,
1944 and as brought out by Board's letter no. F.B.43/7/97-TRU dated 11.7.97 there must exist a
relationship of principal and an agent for bringing grain agent in the ambit of
C & F agent of the farmer and in CBEC Circular no. 48/10/2002-ST dated
13.9.2002, it has been clarified that Adhatiya's (Food grain agents) activity
do not fall under the scope of Clearing and Forwarding Agents services and
hence would not be liable for Service Tax under this category. The circular
issued is a general circular and is not with reference to any state or class of
Adhatiyas. Even though a bunch of representations received from various
trade associations in
2. Incidentally the activity of grain agent is covered under the ‘Commission Agent’ falling under the purview of ‘Business Auxiliary Services’, which has come into force from 1st July, 2003. Commission Agents as per the definition are covered under the Notification No 13/2003- ST dated 20th June 2003 and are exempt from Service Tax.
2. Suitable trade notice may be issued for the benefit of the trade.
3. The receipt of this Circular may kindly be acknowledged.
4. Hindi version will follow separately.
Manish Mohan
Under Secretary to the Govt. of
Under Secretary to the Government of
Circular
No.72/2/2004-ST
2nd
January, 2004
F.No.137/9/2003(Pt.)-CX4
Government of
India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Subject : Facility for single registration and filing single return for Assessees providing more than one services.
During the Open Houses and Seminars
conducted all over India, lot of queries have been raised as to whether only single
registrations is required for a service provider providing more than one
taxable service and also whether a single return is acceptable in respect of
more than one taxable service being provided by the service tax provider.
Apprehensions have also been raised that whenever the service tax assessees
approach the jurisdictional Superintendent of Central Excise and other Central
Excise officers, they are being asked all kinds of questions before their
application is accepted for registration. These issues have been
agitating the minds of service providers and, therefore, this is being
clarified in respect of all the taxable services that only a single
registration for all the taxable services provided by the service provider and
also a single return where an assessee provides more than one taxable service
is sufficient. Similarly, the declaration submitted at the time of
registration in the application for registration (ST-1) shall be accepted by
the jurisdictional Superintendent of Central Excise and the registration must
be given immediately but within seven days in any case.
The following points are,
therefore, further clarified:-
1. Whether a service provider providing more than one taxable service is required to take one registration or separate registration?
Clarification: Attention is invited to Rule 4(4) of the Service Tax Rules, which provides “where an assessee is providing more than one taxable service, he may make a single application, mentioning therein all the taxable services provided by him, to the concerned Superintendent of Central Excise”. Thus in terms of this rule such service provider would be required to take a single registration. However while making such application for registration he should indicate all the taxable services being provided by him Certificate of Registration in Form of ST-2 should also indicate the details of all the taxable services provided by the service provider.
2. Whether a single return is sufficient when an assessee provides more than one Service or separate return is to be filed for each taxable service?
Clarification: Attention is invited to Q.4.7 of the ‘Frequently asked questions on Service Tax’ issued by CBEC in October 2003, wherein it has been clarified “ a single return would suffice. However the details in each of the columns of the Forms ST-3 has to be furnished separately for each of the taxable service rendered by the assessees”.
3. What action should be taken by the concerned officer receiving the application for registration?
Clarification: The application received for registration in Form ST-1 will have to be processed as per the Rule 4(5) of the Service Tax Rules. This Rule provides that “The Superintendent of Central Excise shall after due verification of the application form, grant a certificate of registration in Form ST-2 within seven days from the date of receipt of the application. If the registration certificate is not granted within the said period, the registration applied for shall be deemed to have been granted”
However while granting registration the rule do not permit the jurisdictional officer to question about the correctness of the declaration made by the service provider.
The jurisdictional Superintendent of Central Excise shall, therefore, accept the declaration given by the new assessee in the application for registration for service tax.
4. The field formations may suitably be informed.
5. Trade Notice may be issued for the information of the trade.
6. The receipt of this Circular may kindly be acknowledged.
7. Hindi version will follow.
Manish Mohan
Under Secretary to the Govt. of
Circular No.71/1/2004-ST
2nd January,
2004
F.No.137/9/2003(Pt.)-CX4
Government of
India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Sub: E-filing of Service Tax Returns – Reg.
The attention is invited to the Central Board of Excise and Customs Circular No.52/1/2003 (F.No.137/9/2003-CX4 dated 11.3.2003) introducing e-filing of ST-3 returns of Service Tax from the month of April, 2003 in respect of 10 (ten) select class or group of service tax providers.
2. It has now been decided by the Board to extend this facility to all 58 taxable services with immediate effect.
3. Broadly
the following criteria may be applied for selecting assessees who are being
allowed to avail the facility of e- filing.
|
(i) |
Assessee should have the 15 digit STP code (either PAN based or TEMP No.) which is appearing on the SAPS site used by Central Board of Excise & Customs for giving registration to Service Tax assessees. |
|
(ii) |
The assessee should have been indicating his 15 digit STP code in the challans used by him for the period for which the returns are being filed. (An assessee who has not done this may also opt for e-filing, but he will have to submit copies of Challans, evidencing payment of service tax to the concerned excise formations after indicating his 15 digit STP code on each challan) |
4.
The
process of E-filing will be facilitated by the following sequential steps:-
|
(a) |
The assessee who opts for E-filing should file an application to the concerned excise formation at least one month in advance before the due date of filing of the return, in Annexure-I as may be amended from time to time. |
|
(b) |
The local Commissioner designates an e-mail address and a Telephone No. for receiving queries from trade on any related manner and making arrangement for prompt reply to such mails. |
|
(c) |
User ‘id’ and ‘password’ for the assessee will be communicated to him within ten days after filing the application along with technical details required foraccessing the relevant site and the procedure for making entries and other guidance as may be necessary. |
|
(d) |
After receipt of the said details the individual service provider can download form for entering details of ST3 returns and TR6 challans from the central server using internet and enter the necessary details for the concerned return period. |
|
(e) |
The computer generates a key number which will depend on the STP code, date of filing, value of services declared and tax paid and generates an acknowledgement giving these details which can be printed by the assessee and kept in his records as evidence of having filed the return. |
|
(f) |
The computer will verify the fact of payment from data obtained from Focal Point Bank. Where details as declared by the assessees are not found the assessee will be contacted. |
5. Where an assessee who has opted for E-filing faces any technical difficulty and he is not able to file the return electronically and get the acknowledgement as specified above he may send an E-mail at the address specified by the Commissioner explaining the difficulties and if any reply is not received within 2 days he may send a mail to saps@excise.nic.in
6. If this facility is being tried out for the first time the Central Board of Excise & Customs assures all assessees opting for E-filing of returns that the department will not invoke Section 77 of the Finance Act, 1994 prescribing a maximum penalty of Rs.1000/- for non- filing ST-3 return for delay upto one month from the due date prescribedunder the rules for filing such return. Where an assessee after having opted for e-filing does not succeed in such filing and getting the computer generated acknowledgement within 25 days from the due date he should file a manual return as was being done hitherto. It is to be clearly understood that this assurance does not extend to non-payment of tax in time or mis-declaration of the value of taxable services rendered.
7. The facility of E-filing is an optional facility and does not bar in any way the manual filing of the return by the Service Provider.
8. The field formations may suitably be informed.
9. Trade Notice may be issued for information of the trade.
10. The receipt of this Circular may kindly be acknowledged.
11. Hindi Version will follow.
Manish Mohan
Under Secretary to the Govt. of
Encl: as above
Copy for information to:-
1) All Chambers of Commerce & Industry/Trade Associations/Institute of Chartered Accountants as per mailing list.
2) Commissioner,
Directorate of Publicity & Public Relations, Customs & Central Excise,
C.R. Building, I.P. Estate, New Delhi for wide publicity.
Appendix ‘A’ to TN No…………….Dated……………….
To
The Assistant/Deputy Commissioner
Service Tax.
SUB: APPLICATION FOR PERMISSION TO FILE ST3 RETURNS ELECTRONICALLY
1) Name of Assessee:
2) Category of service(s):
3) Service Tax Registration No.
|
4) Email Address:
(Please give a trusted e-mail address to which the Userword and Password for access to the E-filing of the Return can be sent)
5) I/We request that I/We may be permitted to file my ST3 Return electronically. I/We declare that I/We satisfy the conditions of Trade Notice No…………….Dated………… and shall observe the instructions given therein.
I/We undertake to indicate my/our 15 digit STP code in every
challan used by me/us for remitting Service Tax in Banks.
If any difficulty is faced in filing the return electronically and get the acknowledgement from the computer within one month from the due date, I/we shall file manual returns as was done hitherto.
|
Date: |
Name and
signature of the assessee |
|
|
Designation
with Seal. |
Circular
No. 70/19/2003-ST
Dec 17, 2003
F.No. 256/9/2003-CX-4
Government of India
Ministry of Finance
Department of Revenue
Subject : clarification on the taxability of maintenance of Computer Software-regarding
An issue has been raised whether the organisations who are
engaged in design, development are maintenance of Software and enter into
Annual Maintenance contracts for maintenance of their software, are exempt from
Service Tax or not.
2. '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. In
the instant case repair is not of tangible goods but that of intangible
program/software which is in installed condition and thus the maintenance and
repair of software is not maintenance and repair of 'goods'. Further an
exemption has been granted to maintenance or repair services in relation to
computer, computer systems and computer peripherals vide Notification No.
20/2003-ST dated 21.8.2003. As such computer software would form a part of
computer systems would be covered under this notification. Under the category
of 'consulting engineer' vide Notification No. 4/99-ST dated 28.2.99 taxable
service provided to any person by a consulting engineer in 'elation to computer
software is exempted. The definition of "Business Auxiliary Service"
also specifically provides that; inter alia, maintaining of computer software
is covered in the T service, which is excluded from the scope of business
auxiliary service.
3. Taking the above into consideration, it is to clarify that maintenance of Software is not chargeable to Service Tax.
4. Suitable Trade Notice may be issued for the benefit of the trade.
5. The receipt of this Circular may kindly be acknowledged indicating the date of its receipts in your office.
6. Hindi version will follow.
Manish Mohan
Circular No 69/18/2003-ST
December 15, 2003
F.No 137/8/2001-CX-4(Pt)
Government of India
Ministry of Finance
Department of Revenue
Subject:- Distribution of work amongst various
section of CBEC- regarding.
Please refer to Circular No. 661/52/2002-CX Dated 11.09.2002
issued under File No. 137/8/2001-CX-4 on the subject mentioned above.
2.
It has been deciced by the Board that the work relating to "Service Tax
exemptions under Section 93 of the Finance Act 1994" being handled by the
CX-4 Section shall henceforth be handled by the TRU.
3. Receipt of this letter may please be acknowledged.
Manish Mohan
Under Secrectary to the Govt. of
Under Secretary to the Government of
Circular No. 68/17/2003-ST
Nov 28, 2003
Subject - Clarification on the scope of the Service of "Event
Management" Regarding.
An issue has been raised whether a firm/person who are undertaking
activities of organising "Trade Fairs" and Exhibitions soliciting the
participation from the trade and Industry and provides space or may in addition
provide furniture, cabins, security, electricity, etc., and charge their
customers accordingly fall within ambit of "Event Management" or not.
2. "Event
Management" [Sec. 65(40)] means any person who is engaged in providing any
service in relation to event management in any manner. Further, as per
clarification issued by service tax Instruction F. No. B11/1/2002-TRU, dated
1-8-2002 that (a) An event manager is hired to execute
an event such as product launch of any corporate, promotional activities,
exhibitions and private functions, etc. Event Manager users
his expertise and ideas to manage an event; (b) Service Tax is not on Event as
such but on the service provided for managing an event.
3. The
above provisions & clarifications lead to one conclusion i.e. for
occurrence of taxable event 'provision of event management service', there has
to be a sponsor at whose behest an event is organized and event manager, who organises
such services. Therefore, it is to clarify that service tax is not on the event
but on the service provided on managing an event. Therefore in case where that
event is organised /managed by the sponsor himself, no service tax is payable as "Event Management".
4. Suitable trade notice may be issued for the benefit of the trade.
5.
The receipt of this Circular may kindly be acknowledged indicating the date of
its receipt in your office
Circular
No 67/16/2003-ST
Nov 10, 2003
F.No . 160/3/2002-CX-4
Government of India
Ministry of Finance
Department of Revenue
I am directed to say that a doubt has been raised regarding levy of Service Tax on ship repair during the dry docking by the person duly authorised in this behalf by port authorities. This involves removal of damaged parts and replacement by new parts. This may involve repairing the outside bottom area of a Ship/Vessel by supplying huge quantities of MS plates etc.
The matter has been examined, Port services means any
service rendered by port or any person authorised by them, in any manner, in
relation to a vessel or goods, Thus, all such services rendered, including
during dry dock and repairs to the ship, are taxable which should include not
only the minor repairs provided by ship chandlers but also the dry dock
facilities and any repairs carried out to the vessels. However, the benefit of
notification no. 12/2003-ST dated 20.6.2003 would be available.
2.
A clarification issued by the Board in this matter vide letter of even number
dated 1.7.2003 is also enclosed for information.
Manish Mohan
Under Secretary to the Govt. of Indi
Circular
No. 66/15/2003-ST
Nov 5, 2003
Government of India
Ministry of Finance
Department of Revenue
Subject : Applicability
of service tax on commission income earned on distribution and marketing of
units of mutual fund.
I am directed to say that some doubts have been raised
regarding application of service tax on the activity of Mutual FUnd
Distribution as to whether
1) the comission receivd by distributors on mutual fund distribtion as liable to Service Tax under the category of Business Auxiliary Services ?
2) the services provided is exempt from service tax in terms of Notification No. 13/2003 dated 20.6.2003?
In this connection, it is clarified that the services provided
as reffered above are primarily in nature of the services of commission agent
in relation to clause (ii) and (iv) of the category of services mentioned in
the defintion of Business Auxiliary Services and hence should be leviable to
service tax under this category. This activity does not get covered under
exemption Notification No 13/20003-ST dt 20.6.2003 as
this is not in relation to sale or purchase of goods. The exemption provided
under Notification 13/2003-ST is applicable only for commission agents dealing
in goods.
Field formations and trade may be informed accordingly.
Manish Mohan
Under Secretary CX IV
Circular
No 65/14/2003
Nov 5, 2003
F. No. B3/7/2003-TRU (part)
Government of India
Ministry of Finance
Department of Revenue
Subject : Payment of service tax in case of advance payment of value of services.
I am directed to say that some doubts have been raised
regarding payment of service tax in cases where a lumpsum
payment for a service to be provided in future over a certain period of time,
is made in advance before the date on which the particular service came under
the tax net, but the entire or part of such service is provided after the date
on which it became taxable. The doubt appears to have arisen as Rule 6(1) of Service
Tax Rules, 1994, provides for payment of tax on the value of service received
during a month/quarter, and in the instant case, no payment is received after
the date on which the tax came into force (for example a case where payments
for coaching service is received before 1-7-2003 i.e. the date on which this
service became taxable, but the entire or part of coaching is provided after
that date).
2.
In this regard it may be noted that rule 6 only prescribes the procedure of
payment of tax. The liability to tax is created by section 66 of the Finance
Act, 1994 as amended from time to time. The liability to pay tax is fastened on
the service provider by section 68 of the said Act. These two sections read
together imply that service tax is payable by the service provider on the value
of taxable services. Thus if a service provided is taxable, tax has to be paid
on its value. Section 67 also clarifies value of service as the amount charged for
the taxable service by the service provider. In other words, an amount becomes
value of taxable service only when it has a nexus with the service provided.
That is the reason why the expression used in rule 6 is “value of taxable
services” and not amount. The implication is that the tax has to be paid on the
value of taxable services attributable to the service provided in a
month/quarter as and when it is received. Thus, rule 6(1) can not be read in
isolation. When read alongwith the provisions of the
Act, it becomes clear that where the value of taxable service has been received
in advance for a service which became taxable subsequently, service tax has to
be paid on the value of service attributable to the relevant month/quarter
which may be worked out on pro rata basis.
3. In
this context, attention is invited to para 2.3.1 of
circular No.59/8/2003 dated 20-6-2003 wherein it was clarified that in view of the notification
11/2003-ST dated 20-6-2003, no service tax would be payable where maintenance contracts are entered into before 1-7-2003,
provided the invoices are raised and paid prior to 1-7-2003. It was further mentioned in the circular that similar
would be the situation in case of continuing services. By continuing services what was meant was continuing maintenance services
where there is an ongoing contract under which regular periodical payments are made. That para
2.3.1 was only in the context of maintenance and repair service is also quite clear from the heading,
“MAINTENANCE AND REPAIR SERVICES” of para 2.3 in that
circular. No similar exemption
has been granted to any other service in case of advance payments.
4. Receipt of this letter may
please be acknowledged.
Circular
No. 64/13/2003-ST
Oct 28, 2003
F.No . 168/01/2003-CX.4
Government of India
Ministry of Finance
Department of Revenue
The representations have been received in this office with
regard in the leviability of Service Tax under the category of Advertising
Agency Services in respect of persons agencies engaged in canvassing for
advertisements for which they get commission from the publishers. The persons
involved do not provide any service like making, preparing, displaying and
exhibiting and only undertake canvassing for the advertising.
2. The
term canvassing may merely invoice contacting potential advertisers and
persuading them to give advertisement to a particular
newspaper/periodical/magazine. The making and preparation of the advertisement
namely, drafting of the text, preparation of layout is left either to the
advertiser or to newspaper/ periedical /magazine. Such a service is known as
'space selling'. In such cases, since the agency undertakes the job of merely
bringing the order for an advertisement and does not undertake any further
activity, it would not fall within the definition of advertising agency and
will not be subjected to service tax.
3. On
the other hand, 'canvassing' may involve such agency approaching a customer,
receiving the texts of the advertisement (including photographs, monograms etc.
of the customs), estimating the space that such advertisement would occupy in
the newspaper/periodical/magazine, negotiating the price, informing the general
layout of the advertisement, that would finally appear in such newspaper etc.
In such cases the term 'canvassing' would certainly fall within the phrase 'any
service provided in any manner connected to making preparing, displaying and
exhibiting' and would be taxable service.'
4. In
view of above, I have been directed to say that if the canvassing is limited to
space selling then such services would not be liable to any service tax.
However, if canvassing is involving receiving the text of advertisement,
estimating the space that such advertisement would occupy in the
newspaper/periodical/magazine, negotiating the price, forming the general
layout of the advertisement that would finally appear in the newspaper then
such activity would be liable to service tax under the category of Advertising
Agency Services.
Sanjiv Srivastava
Deputy Secretary to the Government of
Circular
No. 62/11/2003
21st August, 2003
F. No. B3/7/2003-TRU
Government of
Ministry of Finance
Department of Revenue
Tax Research Unit
Subject: Miscellaneous issues relating to the services on which service tax has been imposed with effect from 1-7-2003.
1. Commissioning or installation :
1.1 Commissioning or installation of plant, equipment or machinery by a commissioning or installation agency, is chargeable to service tax. A doubt has been raised as to whether the services like a plumber putting up a water tank, fitting pipes and tubing, an electrician putting up electric wire and fittings, installation of booster motors, air conditioners, water filters, hand-pumps, water heaters etc. will be chargeable to service tax.
1.2 As commonly understood, the activity of installation means the act of putting an equipment, machinery or plant into its place and making it ready for use. The activity of installation will start after erection which would refer to putting up civil structures. Commissioning of a plant would mean operationalising an installed plant/equipment/machinery. In this backdrop it is clarified that putting up a water tank, piping, electric wiring, in a residential premises etc. would not be covered in the definition of taxable service and thus would not be taxable. However, installing a booster pump, air-conditioner, water filter, water heater etc. would be covered in the definition and be taxable, as all these things are machinery or equipment.
1.3 Notification No.18/2003-Service Tax dated 21-8-03 has been issued which exempts commission or installation services provided by a commissioning or installation agency other than a commercial concern. Accordingly the commissioning or installation services provided by an individual will be exempt from service tax.
1.4 Notification No. 19/2003-Service Tax dated 21-8-03 has been issued which provides that in case of a contract which involves the commissioning or installation service alongwith supply of plant, machinery or equipment, service tax will be payable only on 33% of the gross amount charged for commissioning or installation and supply of plant, machinery or equipment. It is optional for the assessee to avail of this notification. It is emphasized under this notification that the gross amount (33% of which is chargeable to service tax) shall include the value of the plant, machinery, equipment, parts and any other material sold by the service provider alongwith the commission or installation service. The benefit of this notification can be availed for a contract only if the exemption under notification 12/2003-Service Tax dated 20-6-2003 is not availed for that contract.
1.5 Corrigendum to Circular No. 59/8/2003: In Service Tax Circular No. 59/8/2003, dated 20th June 2003, in paragraph 2.6,-
(i) in the first sentence the words “commercial coaching and training” may be read as “commissioning or installation” ;
(ii) in the first bullet the sentence “It is submitted that it has been provided in law that service tax is leviable on erection and commissioning charges only and not on the material and goods supplied.” may be read as “It is clarified that it has been provided in law that service tax is leviable on commissioning or installation charges only and not on the material and goods supplied.”
2. Scope of IT service under Business Auxiliary Service:
2.1 The definition of Business Auxiliary Service in the law excludes the Information Technology (IT) services. As per the definition IT 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. It was clarified in Circular No. 59/8/2003, dated 20th June 2003 that only if the output service provided by a service provider is in the nature of the above operations, such exclusion would operate. The mere fact that a personal computer or a laptop has been used for providing the service does not, ipso facto, make the service an information technology service. Similarly, the fact that any of the IT services has been used by the service provider as an input service does not automatically make the output service an IT service.
2.2 A doubt has been raised that the clarification in the said circular dated 20-6-03, is at odds with the letter F.No.334/1/2003-TRU dated 28-2-2003 which states, “However computer enabled services, namely, data processing, networking, back office processing, computer facility management shall not be subjected to Service Tax.” It is claimed that back office processing may include accounts outsourcing or payroll-processing activities etc. and such service may not be primarily in relation to computer system.
2.3 It is clarified that there is no contradiction between the clarifications dt.28-2-03 and dt.20-6-2003. The scope of IT services is explained in the definition of Business Auxiliary Service in the Act itself as 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. The last words “primarily in relation to operation of computer systems” make the intention abundantly clear. The words “back office processing” used in the clarification dated 28-2-2003 have to be read in conjunction with the other terms used therein viz. data processing, networking, computer facility management. Thus any service of back office processing primarily in relation to operation of computer system will be covered as IT services and not taxable. Payroll-processing, accounts management etc. even by using computer programs, can not be termed as activities primarily in relation to computer systems. The use of computer in these services is secondary and the primary activity is that of business-related work. Thus these services will be taxable as Business Auxiliary Services. This is exactly the position that has been clarified in the circular dated 20-6-2003.
3. Maintenance or repair service:
3.1 Maintenance or repair services rendered under contracts entered into prior to 1-7-2003 are exempted from service tax if the bills are raised, and payment also made, prior to 1-7-2003 (notification No.11/2003-ST dated 20-6-03). In this context a doubt has been raised as to whether service tax would still be chargeable in cases where though the bills are raised, or payment made, after 1-7-2003, but the service was rendered prior to 1-7-2003.
3.2 It is a basic principle that no tax can be charged except under authority of law. Thus, if the levy of service tax on a particular service comes into force on a given date, that service will not be taxable if rendered before that date. The levy of service tax on “Maintenance or repair service” has come into force on 1-7-2003. Accordingly any maintenance or repair service rendered prior to 1-7-2003 will not be taxable, irrespective of when the bills are raised or payment made. This will apply to other services as well which were rendered prior to the imposition of service tax on them.
3.3 Notification No. 20/2003-Service Tax dated 21-8-03 has been issued which exempts services in relation to maintenance or repair of computers, computer systems and computer peripherals.
4. Foreign exchange broking:
4.1 With regard to services provided by money changers, a doubt has been raised whether all trading in foreign exchange will be chargeable to service tax.
4.2 Prior to 1-7-2003 the service of “securities and foreign exchange (forex) broking”, when provided by banking company/financial institution/body corporate was liable to service tax. Through Finance Act, 2003 “foreign exchange broking” when provided by foreign exchange brokers, other than banking company/financial institution/body corporate, were also brought under the tax net w.e.f 1-7-2003. As per the definition in law foreign exchange brokers include authorized dealers of foreign exchange. Authorised dealer of foreign exchange has been assigned the meaning of “authorized person” under the FEMA, 1999. Accordingly authorized dealers/money changer etc. which are authorized to deal in foreign exchange are covered in the definition of “foreign exchange brokers” under service tax provisions. However, as explained above only the service of “foreign exchange broking” when provided by foreign exchange brokers (other than banking company/financial institution/body corporate which are already covered) has been brought under the tax net.
5. Service rendered free of charge:
5.1 In the context of certain services, a doubt has been raised as to whether service tax will be payable if the service is provided free of charge.
5.2 As per charging section viz. section 66 of the Act, service tax is chargeable at the rate of 8% of the value of taxable service. Thus if the value is zero the tax will also be zero even though the service is taxable.
6.
Receipt of this letter may please be acknowledged.
Gautam Ray
Joint Secretary (TRU)
Telephone: 011-23092687
Fax. 011-23092031
ST Circular No. 61/10/2003
14th
July 2003
F.NO.165/2/2003-CX-4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Subject : Service
Tax on Doordarshan and All
I am directed to refer
Board's letter of even number dated 27th March 2003, on the above
cite subject. In continuation of the referred letter, I am directed to say that
the protection was available to Prasar Bharati Corporation (
Doordarshan and All Inia Radio) from payment of the Service Tax on the
basis of interpretation of secton 22 of the Prasar Bharati ( Broadcasting
Corporation of
The section 22 of the Prasar
Bharati ( Broadcasting Corporation of
The instructions issued vide the
letter dated 27th March is modified in above terms and the field
formations should be suitably instructed to get all units of Prasar Bharati
Corporation registered immediately.
Manish
Mohan
Under Secretary to the Govt. Of
Phone: 23094558
Circular No. 60/9/2003-ST
10th
July, 2003
F.No.150/2/2002 CX.4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
Subject:- Levy of services tax on storage of
empty containers regarding.
I am directed to say that a doubt has been raised regarding
levy of service tax on storage of empty containers. The matter has been
examined. It is clarified that the handling/storage and warehousing of empty
containers would be covered within the scope of storage and warehousing
services, as it is covered under the heading goods under section 65(87) of the
Finance Act, 1994. The Service Tax would be levible on it. Further, the
clarification issued vide letter No. F.B.II/I/2002/TRU
dated 1.8.2002 regarding empty containers not to be considered as Cargo for
Cargo Handling Services, has no relevance in the instant case.
3. Field formations and trade may be informed accordingly.
4. Hindi version will follow.
Manish Mohan
Under Secretary, (CX-4)
20th June, 2003
F. No. B3/7/2003-TRU
Government of
Ministry of Finance
Department of Revenue
Tax Research Unit
Subject: Imposition
of Service Tax on new services consequent to enactment of Finance Bill,
2003-reg.
1. APPOINTMENT OF EFFECTIVE DATE FOR THE NEW SERVICES
It may be recalled that the Finance Act, 2003 has made
provisions to levy service tax, from a date to be notified later on, on the
following new services,-
o
Commercial training & coaching center
o
Technical testing & analysis; technical inspection and certification
o
Maintenance and repair service
o
Commissioning and installation
o
Business auxiliary services
o
Internet café
o
Franchise service
Further, it
was also provided in the Finance Act to extend the scope of services already
covered under the tax net in
case of,-
o
port services
(which were earlier limited to major ports) to cover all ports under the
service tax net;
o
authorised automobile service was brought under the tax net with
effect from 16.7.2001. However, it was restricted only to motorcars and two
wheeled motor vehicles. Buses, trucks, maxi cabs etc were not covered.
Provision have been made to widen the scope of authorized automobile service to
cover all such vehicles;
o foreign exchange broking service provided by any body corporate or non-banking financial company was covered under the tax net in the category of banking and other financial service with effect from 16.7.2001. Provisions have been made to extend the scope of the tax to include the service provided by all foreign exchange brokers (including moneychangers and forex dealers).
As per the provisions of the Finance Act, the above levies
or extensions of levies are to come into effect from a date to be appointed by
the Central government. In this regard, vide notification No.7/2003-Service
Tax, date 20th June 2003, the government has appointed 1st July,
2003, as the date from which the levy of Service tax on the above services
would come into effect.
2. EXEMPTIONS AND CLARIFICATIONS
2.1 BUSINESS
AUXILIARY SERVICE:
2.1.1 Call centers and medical transcription centers:
Business auxiliary services provided by call centers (i.e.
commercial concern which provides assistance, help or information, through
telephone, on behalf of another person) and medical transcription centers (i.e.
commercial concern which transcribes medical history, treatment, medical
observations and the like) have been fully exempted from levy of service tax
w.e.f. 1st July, 2003, vide notification No.
8/2003-Service Tax, dated 20th June, 2003.
2.1.2 Commission agent:
As per the definition of business auxiliary services, services as commission agent are considered business auxiliary services. However services of commission agents have been exempted from service tax w.e.f. 1st July, 2003 vide notification No.13/2003-Service Tax dated 20th June 2003. Commission agent has been defined in the notification, as a person who causes sale or purchase of goods, on behalf of another person for a consideration, which is based on the quantum of such sale or purchase. It may be noticed that the exemption under this notification is for a commission agent while the services of a consignment agent remain taxable under the category of Clearing and Forwarding services. It may be appreciated that the nature of service provided by a Consignment agent is different than that provided by a commission agent. A consignment agent’s job is to receive the goods from the principal and dispatch them on the directions of the principal, whereas a commission agent’s job is to cause sale/purchase on behalf of another person. Thus, the essential difference is that a commission agent sells or purchases on behalf of the principal while consignment agent receives and dispatches the goods on behalf of a principal. It is possible that a person may be a consignment agent as well as a commission agent. Such a person would already be covered in the category of Clearing and Forwarding agent and would be liable to pay service tax in that category. In other words, the present exemption is available only to such commission agent who is not a consignment agent.
2.1.3 Certain
doubts have been raised in case of business auxiliary services. In this regard
the following is clarified,-
· While it is not possible to give an exhaustive list of business auxiliary services, the following are illustrations of services that are covered under this category viz. evaluation of prospective customers, processing of purchase orders, customer management, information and tracking of delivery schedules, accounting and processing of transactions, operational assistance for marketing, formulation of customer service and pricing policies, managing distribution & logistics. The services provided in relation to getting a customer, verification of prospective customer, processing of purchase order etc would also be covered under service tax, as the law specifically provides for inclusion of such services as business auxiliary support services.
· As regards the question whether insurance agents, C&F agents working on commission basis fall under the definition of business auxiliary service, it is clarified that they do not, as they are specifically covered within the definition of other specified taxable services, namely the Insurance service and C&F Service respectively. Under Section 65A of Finance Act 1994, it has also been provided that in case of overlap, a service would be classified under the head, (a) which provides most specific description, (b) in case of a composite service having combination of different taxable services, the service which give them their essential character and (c) in case the test of (a) and (b) does not resolve, the service which comes earlier in the clauses of Section 65, i.e. the service that was subjected to service tax earlier. Since Insurance services and C&F Services are more specific description and were also subjected to service tax prior to imposition of tax on business auxiliary service, the insurance agents, C&F agents working on commission basis would fall under those respective categories. From this, it follows that a particular service can be taxed only under one head of service.
· As per the definition of business auxiliary services, information technology service is outside the purview of business auxiliary service. In the explanation appended to the definition in the Act itself, it has been clarified that 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. In this regard, it is clarified that only if the output service provided by a service provider is in the nature of the above operations, such exclusion would operate. The mere fact that a personal computer or a laptop has been used for providing the service does not, ipso facto, make the service an information technology service. Similarly, the fact that any of the IT services mentioned in the explanation has been used by the service provider as an input service does not automatically make the output service an IT service. Therefore, in such cases, individual service has to be examined with reference to the explanation provided to the definition of business auxiliary service and only such output services which qualify to be IT services in terms of the said explanation shall remain excluded from taxable service under the heading business auxiliary service.
2.2 VOCATIONAL TRAINING AND COACHING CENTERS:
2.2.1 Commercial coaching and training services provided by institutes that prepare applicants for Board examinations and competitive exams like entrance examinations for Indian Institute of Technology-Joint Entrance Examinations/Pre Medical Tests, Civil Services exams etc. are chargeable to service tax. However, services in relation to commercial coaching and training, provided by, -
a. vocational training institute;
b. computer training institute; and
c. recreational training institute;
have been exempted from service tax w.e.f. 1st July, 2003 vide Notification No.9/2003-Servtice Tax dated 20th June 2003. Therefore, vocational coaching and training services provided by typing and shorthand institutes, TV/ vehicle repair training institutes, tailoring institutes, industrial training institutes, foreign language institutes, computer-training centers, hobby classes, institutes teaching martial arts, painting, dancing etc would not be chargeable to service tax. This exemption would remain in force upto 29th February 2004.
2.2.2 Institutes like the Institute of Chartered Accountants of India some time hire the services of other institutes to impart some part of training (like language or computer training) to the students undertaking courses for obtaining recognized degrees/diplomas (like Chartered Accountancy) from their institute. Whereas institutes the Institute of Chartered Accountants of India will not be chargeable to service tax because they confer qualifications recognized by law, the institutes or centers providing such part of training may be otherwise under service tax net. Vide notification No. 10/2003-Service Tax dated 20th June, 2003, exemption has been provided w.e.f. 1st July, 2003 to such services rendered by commercial training or coaching centers from service tax which form an essential part of the course or curriculum leading to issuance of recognized certificate, diploma, degree or any other educational qualification. The exemption is subject to the condition that the receiver of such service (for example, student) makes payment for the entire course or curriculum to the institute or establishment issuing such certificate, diploma etc. and not to the commercial coaching or training center.
2.2.3
Certain
doubts have been raised in case of commercial coaching and training. In this
regard, the following is clarified,-
·
Whether service tax is leviable on postal coaching: It is clarified that service tax is
leviable on any coaching or training provided by an institution on commercial
basis. Therefore, the coaching provided by postal means would also be covered
under the service tax and the charges, including the postal charges collected
for rendering this service would be subjected to service tax.
·
Whether service tax is leviable on institutes providing commercial
coaching in addition to recognized degree courses: Some institutes like colleges,
apart from imparting education for obtaining recognized
degrees/diploma/certificates, also impart training for competitive
examinations, various entrance tests etc. It is clarified that by definition,
such institutes or establishments, which issue a certificate, diploma or degree
recognized by law, are outside the purview of "commercial training or
coaching institute". Thus, even if such institutes or establishments
provide training for competitive examinations etc., such services rendered
would be outside the scope of service tax.
·
Whether individuals going to houses to impart tuition/coaching would be
chargeable to service tax: It is clarified that service tax is on institutions/establishments.
Therefore, only those service providers are covered under the service tax who have some establishment for providing commercial
coaching or training i.e. institutional coaching or training. Thus, individuals
providing services at the premises of a service receiver would not be covered
under service tax. However, if coaching or training center provides commercial
coaching by sending individuals to the premises of service receivers, such
services would be chargeable to tax, as in this case, the individuals are
rendering services on behalf of an institution.
· Whether free summer training/ in house training provided by employers to their employees are covered under service tax net: It is clarified that in case employers provide any free training themselves, no service tax is chargeable. However if an employer hires an outside commercial coaching or training center for imparting some training to its employees, then the payment made by the said employer to such coaching center will be chargeable to service tax.
2.3 MAINTENANCE
AND REPAIR SERVICES:
2.3.1 Maintenance
contracts entered into before 1st July 2003:
There are cases where maintenance contracts are entered into for a period of more than one year. Vide notification No.11/2003- Service Tax, dated 20th June 2003 for maintenance contracts entered into prior to 1st July, 2003, exemption has been provided to that part of the value of the service for which bill/invoices have been raised and the amount has actually been received prior to the 1st July, 2003. For such contracts, all subsequent payments or payments made against invoice issued subsequent to the 1st July 2003 will be chargeable to service tax. Similar will be situation for payments made for continuing services.
2.3.2 Certain doubts have been raised in case of maintenance and repair services as to whether service tax on maintenance and repair would be charged in cases where during the guarantee period, the services are provided to the buyer of the goods while the payments for the same are received from the supplier of the goods. In this regard it is clarified that irrespective of the fact that the receiver of the service is different from the person making payments for such services, the service tax is leviable on the services provided towards maintenance and repair. Therefore, for the services provided during the warranty period by the dealer or any other authorized person, service tax would also be leviable on any amount received by such dealer or such other authorized person from manufacturer of such goods.
2.4 FRANCHISE SERVICE:
Franchise service is a service provided by franchisor to a franchisee. Section 65 of the Finance Act 1994, (sub section 47) defines franchise as a specific type of agreement. This agreement has various ingredients, which have been specified in the said definition. For removal of doubt it is clarified that unless all the ingredients mentioned at (i) to (iv) of the said sub section are satisfied, the agreement can not be called as franchise agreement. These ingredients are,-
(i) the 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 techniques 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 indirectly, 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.
For example, the mere fact that a principal manufacturer has allowed production of goods bearing his brand name by another person under ‘License Production Agreement`, does not make the agreement a Franchise Agreement. A franchise agreement also includes the franchisee being obliged to follow the concept of business operation, managerial expertise, market techniques etc. of the franchisor and is under an obligation not to engage in selling, producing or providing similar goods or services, identified with any other person. Therefore, in the absence of such ingredients, a mere licensed production cannot be called as a franchise agreement and accordingly the license fees paid for such license production cannot be charged to service tax.
2.5 TECHNICAL
INSPECTION AND CERTIFICATION SERVICES:
A doubt has been raised whether certification given in respect of immovable property should fall under the purview of ‘technical inspection and certification services`. In this regard it may be recalled that earlier, CBEC vide its order No. 1/1/2002, dated 26.02.2003, issued under Section 37B (of the Central excise Act as made applicable to service tax) had clarified that certification given under authority of any code or statute can not be considered as a consulting engineer service. However, the new service included in 2003 budget, namely ‘technical inspection and certification services` would cover certification of all types including that of immovable property. Therefore, it is clarified that such services become taxable from the notified date.
2.6 COMMISSIONING AND INSTALLATION SERVICES:
Certain doubts
have been raised in case of commercial coaching and training
. In this regard, the following is clarified,-
· In case of commissioning and installation it has been pointed out that in case of turnkey project, the contract may be indivisible and no separate value could be assigned to commissioning or installation of goods. Doubts have also been raised as to what would be the value of taxable service. It is submitted that it has been provided in law that service tax is leviable on erection and commissioning charges only and not on the material and goods supplied. However, it is upto the service provider to show the break-up of commissioning or installation charges. In case service provider shows consolidated charges, service tax would be leviable on such consolidated amount.
· A doubt has been raised as to whether charges for erection of plant are covered under the service tax or only commissioning and installation charges. It is clarified that the law specifically provides for taxation of commissioning and installation of plant, machinery or equipment. Thus all activities other than the commissioning and installation of the plant/machinery/equipment per se, will not be chargeable to service tax.
2.7 MANDAP KEEPER SERVICE:
Religious places like parish hall, temples etc provide services as mandap keeper for hosting of social and religious functions. Though such services are liable to service tax under the mandap keeper services, vide notification No.14/2003-Service Tax, 20th June, 2003 services provided by the religious centers as mandap keeper in their precincts have been exempted from service tax.
2.8 CREDIT OF SERVICE TAX PAID ON TELEPHONES:
In regard to credit of service tax on telephone connection, queries have been raised as to whether service tax credit would be admissible on telephone sets installed only in the business premises. The answer is in the affirmative, and credit will be allowed only on telephone sets installed in the business premises. Mobile phones are not covered.
2.9 MISCELLANEOUS
ISSUES:
2.9.1 In case of authorized service stations, maintenance or repair services, commissioning and installation services and photography services it has been provided in the law that the cost of goods and material shall not form part of the value to be subjected to service tax, if evidence (like sale invoice/bill) shows that these goods were sold. Such dispensation has, however, not been provided for other services like commercial coaching and training centers, telecom services. In this regard, a general exemption under Notification No. 12/2003-service Tax, dated 20th June, 2003 has been issued exempting that part of the value of all taxable services from service tax, which represents the cost of goods or material sold by the service provider to the receiver of such services during the course of provision of the taxable services. This exemption would be available only in cases where the sale of such goods is evidenced and the sale value is quantified and shown separately in the invoice. It is also clarified that in case of commercial training and coaching institutes, the exclusion shall apply only to the sale value of standard textbooks, which are priced. Any study material or written text provided by such institute as a part of service which does not satisfy the above criteria will be subjected to service tax.
2.9.2 In case of a non-resident service provider who does not have any
office in
2.9.3 Though the new rate of service tax of 8% came into force from 14th May, 2003 on existing 51 services, and would come into effect from 1st July, 2003 in case of new services and extensions of services, in certain cases service providers have reportedly collected service tax @ 8% on such services, even prior to these specified dates. In such cases, unless the amount is refunded back to service receiver, the service provider is required to deposit amount equal to such duty collected in excess of that is leviable, as per the provisions of the service tax law.
3. The
contents of this circular may be given wide publicity so that no difficulty is
faced by the trade as well as the departmental
officers in their observance and implementation. Apart from issuance of trade
notice, wide publicity in the
form of press releases and advertisement may also be given. Meetings/Seminars/
Consultations with the trade may be
conducted to clarify the new provisions and clarifications relating thereto.
Any difficulty faced by the trade in
observance, by the officers in implementation or other issues pertaining to the
new levies may be brought to the notice
of the undersigned. However, references for clarifications pertaining to
existing services may be made to Member
(Service Tax) or to CX-4 Section.
Tel. No.23094558
ST
Circular No. 58/7/2003
20th
May,2003
F.No.157/2/2003 CX.4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
Subject:- Using a wrong accounting Code for
payment of Service Tax clarification - Regarding.
I am directed to say that a representation had been received
by the Board raising apprehensions regarding using wrong Accounting Code for
payment of Service Tax. Whether, amounts to having paid the Service Tax or not.
2. The
Board has examined the issue. In this connection, I am directed to clarify that
the assessee need not be asked to pay the service tax again. In such cased the
matter should be sorted with the P.A.O. As regards to the cases where the
assessee was asked to pay service tax again, the amount thus paid may be
refunded by the concerned divisional Asst. Commissioner/Deputy Commissioner.
3. The field formations may suitably be informed.
4. Trade Notice may be issued for the information of the trade.
5. The receipt of this Circular may kindly be acknowledged.
6. Hindi
Version will follow.
Manish Mohan
Under Secretary to the Government of
ST
Circular No. 57/6/2003
21st April,2003
F.No.137/19/2003 CX.4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
Subject:- Irregular Levy of Service Tax by the
service providers @8% after budget i.e. 1-3-2003- regarding
It has come to the notice of the Board that service providers have started collecting service tax @8% immediately after the budget i.e.1-3-2003. However, this rate will come to effect from 14th May, 2003 on which the Finance Bill received the accent of the President. In this connection it is stated that if any amount has been collected as service tax but the same is not deposited with the Government in terms of provisions of Section 83 of Finance Act, 1994 same becomes recoverable.
It is, therefore, requested to alert the field formations to verify the returns carefully for the above mentioned period so as to ensure that amount collected in excess as Service tax should e deposited with the exchequer.
Manish Mohan
Under Secretary to the Government of
ST
Circular No. 56/5/2003
25th April, 2003
F.No.254/1/2003-CX-4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Sub:- Non levy of service tax on export of
services – Regarding
The Central Government has issued Notification no.2/2003 dated 1.3.2003 in the current year’s Budget rescinding the earlier Notification no. 6/99 Service Tax dated 9.4.99 which exempted taxable services from payment of service tax so long as payment for services rendered is received in convertible foreign exchange which is not repatriated outside India. Consequent to the issue of Notification no. 2/2003 cited above, service tax would be leviable on all taxable services consumed or rendered in India, irrespective of whether the payment thereof is received in foreign exchange or not.
2. In this regard various representation have been received by the Board raising apprehension that because of the withdrawal of the notification no. 6/99, export of service would be affected as it would be costlier in the international markets.
3. The Board has examined the issue. In this connection I am directed to clarify that the Service Tax is destination-based consumption tax and it is not applicable on export of services. Export of services would continue to remain tax-free even after withdrawal of notification no. 6/99 dated 9.4.99. Further it is clarified that service consumed/provided in India in the manufacture of goods which are ultimately exported, no credit of service tax paid can be availed or reimbursed at present as inter-sectoral tax credit between services and goods are not allowed.
4. Another
question raised is about the taxability of secondary services which are used
by the primary service provider for the export of services, Since the
secondary services ultimately gets consumed/merged with the services that are
being exported no service tax would be leviable on such secondary
services. However in case where the secondary service gets consumed in
part or toto for providing service in
5. A further question raised is relating to payments receivable in foreign exchange for the services performed prior to March, 1, 2003 when the rate of service tax applicable was 5 % but payments are received after March 1, 2003. The enhancement of the rate of service tax from 5% to 8% would be applicable only when the Finance Bill is passed. If payments are received in the aforesaid case after the Finance Bill is passed, the rate of tax applicable would be 5% so long as the billing has been made prior to the date of passing of the Finance Bill. If the billing is made subsequent to the date of the passing of the Finance Bill, the service tax would be applicable at the enhanced rate of 8%
6. The field formations may suitably be informed.
7. Trade Notice may be issued for the information of the trade.
8. The receipt of this Circular may kindly be acknowledged.
9. Hindi version will follow.
Manish Mohan
Under Secretary to the Govt. of
ST Circular No.
55/4/2003.
24th April, 03
F.No. 137/19/2002-CX-4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
Subject: - Exemption to taxable Services provided by a Service provider
to Special Economic Zone (SEZ) Developer or to a unit located in SEZ
– Reg.
I am directed to invite your attention to notification No. 17/2002-ST dated 21.11.2002 granting exemption to taxable Services provided by a Service Provider to Special Economic Zone (SEZ) Developer or to a unit located in SEZ for the development, operation and maintenance or setting up SEZ Units. For availing the exemption, the taxable services to be rendered by the Service Provider is proposed to be authorised by a committee headed by Chief Commissioner of Central Excise having jurisdiction over said Special Economic Zone. The Committee will comprise:
i. Jurisdictional Commissioner of Central
Excise.
ii. Development Commissioner of the Zone.
iii. Joint Director General of
Foreign Trade.
iv. Jurisdictional Assistant/Deputy
Commissioner of Central Excise.
For the purpose of availing benefit of the above
notification, the Service Provider will make an application to the concerned
Development Commissioner with the details of services proposed to be provided
with the details of SEZ Developer or a unit located in SEZ for the development,
operation and maintenance or setting up SEZ Units.
After processing the application, the Development
Commissioner will present the application to the committee as referred above
for examination and necessary authorisation. The date of meeting of the
Committee would be conveniently fixed by the Development Commissioner in
consultation with the members of the Committee.
After the authorisation is accorded to the service
providers, the Development Commissioner will carry out further monitoring of
the availment of the exemption.
Manish Mohan
Circular No. ST 54 /3 /2003
21st April,2003
F.No.149/9/2002 CX.4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
Subject:- Internet telephony services – clarification - reg.
I am directed to say that doubts has been raised regarding the classification
of the Internet Telephony Service, as to whether this service is covered under
the category of ‘telephone service’ or ‘online information and database access
and/or retrieval service’ and hence liable to pay Service Tax.
2. Transmission
of two-way voice communication through the medium of Internet is called
Internet Telephony. Even if the licences to Internet Telephony Service
Providers are issued under section 4 of the Indian Telegraph Act, 1885, the two
way voice communication is made possible through data transfer over the
Internet. As per Section 65(19), 1994, the term “on-line information and
database access and/or retrieval” means providing data or information,
retrievable or, otherwise, to a customer in electronic form through a computer
network. Accordingly, it is to confirm that Internet Telephony Services
fall under the category of online information and database access and /or
retrieval services.
3. The field formations may suitably be informed.
4. Trade Notice may be issued for the information of the trade.
5. The receipt of this Circular may kindly be acknowledged.
6. Hindi
version will follow.
Manish Mohan
Under Secretary to the Government of
Under Secretary to the Government of
ST
Circular 53/2/2003
27.3.2003
F.No.137/11/2003 CX.4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
Subject:- Rounding of Service Tax to the multiples of a Rupee
Instances have come to the notice of Board with regard to difficulties being faced by the Field Formations/Service Providers in collecting/paying the service tax in amounts less than a rupee or in multiple thereof.
Attention is invited to the provisions of Section 37-D of the Central Excise Act, 1944 which has been made applicable to Service Tax Law by virtue of Section 83 of Finance Act, 1994 (as amended), provide that the amount of service tax, interest, penalty, fine or any other sum payable and the amount of refund or any other sum due, under the provisions shall be rounded off to the nearest rupee and, for this purpose, where such amount contains a part of a rupee consisting of paise then, if such part is fifty paise or more, it shall be increased to one rupee and if such part is less than fifty paise it shall be ignored.
Suitable Trade notices may be issued for the information of the Trade.
Hindi version will follow.
Receipt of this Circular may \kindly be acknowledged.
Manish Mohan
Under Secretary to the Govt. of
Circular
no.ST 52/1/2003
11th
March 2003
F.No.137/9/2003-CX4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise and Customs
Sub: E-filing of Service Tax Returns – Reg.
The Central Board of Excise and Customs is getting ready to
facilitate electronic filing of ST-3 returns of Service Tax from the month of
April, 2003. Initially, this facility will be extended to only select class or
group of service tax providers.
2. Broadly
the following criteria may be applied for selecting assessees in the initial
phase to be implemented in April, 2003.
|
(i) |
Assessee should be providing any one of the following services viz., |
|||||||||||||||||||||||||||||||||
|
|
|
|||||||||||||||||||||||||||||||||
|
(ii) |
Assessee should have the 15 digit STP code (either PAN based or TEMP No.) which is appearing on the SAPS site used by Central Board of Excise & Customs for giving registration to Service Tax assessees. |
|||||||||||||||||||||||||||||||||
|
(iii) |
The assessee should have been indicating his 15 digit STP code in the challans used by him for the period from September, 2002 to March, 2003 for paying Service Tax. (An assessee who has not done this may also opt for filing. But he will have to submit copies of Challans, evidencing payment of duties to the concerned excise formations after indicating his 15 digit STP code on each challan) |
3.
The
process of E-filing will be facilitated by the following sequential steps:-
|
(a) |
The assessee who opts for E-filing should file an application to the concerned excise formation before 31-03-2003, in Annexure-I as may be amended from time to time. |
|
(b) |
The local Commissioner designates an e-mail address and a Telephone No. for receiving queries from trade on any related manner and making arrangement for prompt reply to such mails. |
|
(c) |
User id and password for the assessee are communicated to him before 10-04-2003 along with technical details required for accessing the relevant site and the procedure for making entries and other guidance as may be necessary. |
|
(d) |
After 15-04-2003 he downloads form for entering details of ST3 returns and TR6 challans from the central server using internet and enters the necessary details for the concerned return period. |
|
(e) |
The computer generates a key number which will depend on the STP code, date of filing, value of services declared and tax paid and generates an acknowledgement giving these details which can be printed by the assessee and kept in his records as evidence of having filed the return. |
|
(f) |
The computer will verify the fact of payment from data obtained from Focal Point Bank. Where details as declared by the assessee is not found the assessee will be contacted. |
4. Where an assessee who has opted for E-filing faces any technical difficulty and he is not able to file the return electronically and get the acknowledgement as specified above he may send an E-mail at the address specified by the Commissioner explaining the difficulties and if any reply is not received within 2 days he may send a mail to saps@excise.nic.in
5. Since this facility is being tried out for the first time the Central Board of Excise & Customs assures all assessees opting for E-filing of returns that the department will not invoke Section 77 of the Finance Act, 1994 prescribing a maximum penalty of Rs.1000/- for non- filing ST-3 return for delay upto one month from the due date prescribed under the rules for filing such return. Where an assessee after having opted for e-filing does not succeed in such filing and getting the computer generated acknowledgement within 25 days from the due date he should file a manual return as was being done hitherto. It is to be clearly understood that this assurance does not extend to non-payment of tax in time or mis-declaration of the value of taxable services rendered.
6. In this initial phase electronic filing will be optional. Every Commissioner should take initiative to get at least some assessees in his Commissionerate to file return electronically. Based on the experience during April, 2003 guidelines will be revised to bring more assessees under the scheme by September, 2003. The progress in practice of using electronic signatures also will be taken into account before revising this instruction.
7. The field formations may suitably be informed.
8. Trade Notice may be issued before 20-03-2003 for information of the trade.
9. The receipt of this Circular may kindly be acknowledged.
10. Hindi version will follow.
Lalit Kumar
For Under Secretary to the Government of
Appendix ‘A’ to TN
No…………….Dated……………….
To
The Assistant/Deputy Commissioner
Service Tax.
SUB: APPLICATION
FOR PERMISSION TO FILE ST3 RETURNS ELECTRONICALLY
1) Name of Assessee:
2) Category of service(s):
3) Service Tax Registration No.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4) Email Address:
(Please give a trusted e-mail address to which the Userword and Password for access to the E-filing of the Return can be sent)
5) I/We request that I/We may be permitted to file my ST3 Return electronically. I/We declare that I/We satisfy the conditions of Trade Notice No…………….Dated………… and shall observe the instructions given therein.
I/We undertake to indicate my/our 15 digit STP code in every
challan used by me/us for remitting Service Tax in Banks.
If any difficulty is faced in filing the return electronically and get the acknowledgement from the computer within one month from the due date, I/we shall file manual returns as was done hitherto.
|
Date: |
Name and signature of the assessee |
|
|
Designation with Seal. |
Circular
No.ST-51/13/2002
7th January, 2003
F.No.178/1/2002-CX.4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
Subject: Classification of Services.
I am directed to say that doubts have been raised regarding
classification of certain services which appear to fall under two or more
categories simultaneously. Some instances
where such problems have arisen relate to Management Consultants vs. Manpower
Recruitment Services, Mandap Keepers vs. Convention Services, Rent-A-Cab Scheme
vs. Tour Operators, Cargo Handling Services vs. Storage And Warehousing
Services, Architect vs. Interior Decorator, Scientific And Technical Consulting
Services vs. Consulting Engineer, Practicing Chartered Accountants vs.
Management Consultants, etc.
2. he
matter has been examined in the Board.
It is hereby clarified that any service (transaction) can be taxed only
once, even if it appears to fall under two or more categories. Therefore, before levying service tax it is
essential to determine under which category a particular service falls. It should be kept in mind that service tax is
a tax on the service provided and is recovered from the service provider (in
some cases even from the service recipient).
The position is akin to Central Excise duty which is charged on
manufactured goods. Just as Central
Excise duty can not be charged twice on the same goods under two separate
chapters/headings/sub-headings of the Central Excise Tariff, so also Service
tax can not be charged twice on the same service (transactions). However, one service provider may provide
more than one taxable service. In such
cases, the service provider need only take one registration, but it shall be
endorsed for all the taxable services and tax liability will have to be
discharged for each of the taxable services separately.
3. However, in the absence
of any interpretative rules, it may become difficult at times to decide the
classification of a particular service.
The guiding principle should be that a service should be categorised
under that category which is more specific. As for example, a hotel may rent
out a conference room for an official conference where lunch is also
served. A dispute could arise in this
case as to whether this particular service would fall under the category of
'mandap keeper' and exempt from tax vide Notification No.12/2001-Service Tax
dated 20.12.2001, or it will fall under the category of 'convention services'
and charged to service tax. Between the
two competing categories, in this case, the more specific one would be that of
a 'convention service' since a 'mandap keeper' includes official, social as
well as business functions whereas a 'convention service' covers conventions
only which is like an official function.
Hence in this case the service would not be exempt from service
tax.
4. Similarly, in each case where such problems arise the proper Central Excise officer has to decide on merits as to which is the more specific category and charge tax accordingly.
5. Pending issues may be disposed of on the basis of the above guidelines. Past cases need not be re-opened.
6. The field formations may suitably be informed.
7. Trade Notice may be issued for the information of the trade.
8. The receipt of this Circular may kindly be acknowledged.
9. Hindi version will follow.
F.No.249/2/2002-CX-4
Government of
(Ministry of Finance & Company Affairs)
Department of Revenue
(Central Board of Excise & Customs)
18th December, 2002.
Subject: Levy of Service Tax on Depository Service under Banking & other financial
services.
I am directed to say that doubts have been raised as to
whether Service Tax is payable on the services rendered by Central Depository
Services (
2. A clarification has been sought in regard to applicability of service tax levy on the service of ‘easi’, in view of clarification issued vide F.No.B-11/1/2001-TRU dated 9-7-2001 that e-commerce would not be liable to service tax under the category of "on line information and data base access and /or retrieval service".
3. The matter has been examined in the Board. Instructions issued vide F.No.B-11/1/2001-TRU dated 9.7.2001 had clarified in Annexure-IV that in e-commerce transactions, no service of online information and database access/retrieval was involved and therefore, e-commerce transactions would not, ordinarily, be covered under the service tax net.
However, this clarification is not applicable to services covered under other taxable services including "banking and other financial services" which are provided through INTERNET.
4. Service tax has been imposed on ‘banking and other financial service’ with effect from 16.07.2001. Depository service is one of the services covered under the category of ‘banking and other financial services.’ The definition of ‘Banking and other financial services’ as given in section 65 of the Finance Act 1994 includes "provision and transfer of information and data processing". "Banking and other financial services" and "on line information and data base access and/or retrieval service" are two distinct taxable services having distinct coverage. The service of ‘easi’ provided by CDSL is a part and parcel of depository service and hence covered under the category of "banking and other financial service". They are liable to pay service tax on all depository service even if service is provided through Internet.
5. Suitable trade notice may be issued for the information of the trade.
6. The receipt of this circular may kindly be acknowledged.
7. Hindi version will follow.
F.No.137/13/2001-CX.4
Government of
Ministry of Finance & Company Affairs
Department of Revenue
18.12.2002.
Subject: Service Tax on Consulting Engineers - regarding.
I am directed to invite your attention to Section 65(25) of
the Finance Act, 1994 (as amended), which defines Consulting Engineer as
"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." The types of services a consulting engineer normally renders
are illustrated in Board's letter F.No.43/5/97-TRU dated 2.7.97, services
relating to construction activities are covered therein.
2. Some construction agencies take up turnkey projects for construction of flats, administrative building, etc. For constructing these flats they have to do some designing, drawing and also provide advise and technical assistance. The contract is generally for a lumpsum amount with no separate allocation for the above charges. Some field officers are taking part of the contract as a 'service' provided by a 'consulting engineer' and levying service tax on the same. Representations have been received that in respect of such turnkey contracts for carrying out construction activities, the designing and drawing work is a service provided to themselves in the course of the construction activity and there is, therefore, no question of charging any service tax on this amount.
3. This issue has been examined in the Board. For any civil construction work to commence, a lot of preparatory work is required, e.g. soil testing, survey, planning, designing, drawing, etc. Once the design and drawings are completed by the construction company, it always seeks the approval of the client before proceeding with the construction. If the client suggests some changes they are incorporated in the design. This portion of the work is provided to its client and the service is definitely of a 'consulting engineer' and hence taxable.
4. Another point raised is whether "erection & commissioning charges" are liable to service tax, or not. This matter has also been examined in the Board. The work of erection and commissioning of machineries and plants, is definitely one of providing "technical assistance" to buyer of plant/ machinery and is, therefore, in the nature of services provided by a "Consulting Engineer" and hence taxable [Refer para 3 (vii) of Board's letter dated 2.7.97].
5. Trade Notice may be issued for information of the trade.
6. Receipt of this letter may please be acknowledged.
7. Hindi version will follow.
Circular
No.47/10/2002-Service Tax
21st
August, 2002
F.No.137/18/2002-CX.4
Government of India
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
Subject: Service Tax - Allocation of major head/minor head/sub-head
for 10 new Services covered under the
Tax net w.e.f. 16.08.2002 - regarding.
I am directed to say that major head/ minor head/ sub-head
have been allotted by the office of Pr.CCA for depositing service tax in
respect of the 10 new services brought under the tax net(w.e.f. 16.08.2002),
namely - (Ref. Board's letter F.No.B.11/1/2002-TRU dated 01-08-2002)
|
(i) |
Insurance
auxilliary service relating to life insurance |
|
(ii) |
Cargo
Handling Services |
|
(iii) |
Storage and
Warehouse Services |
|
(iv) |
Event
Management Services |
|
(v) |
Rail
Travel Agent |
|
(vi) |
Health
Club and |
|
(vii) |
Beauty
Parlours |
|
(viii) |
Fashion
Designing |
|
(ix) |
Cable
Operators |
|
(x) |
Dry
Cleaning |
2. Copy of Deputy Controller of Accounts's letter No.Coord/13(6)/98-99/Vol.IV/294-344 dated 15.07.2002 is also enclosed in this regard for taking appropriate action at your end.
3. Trade notice may be issued for information of field formations and Trade and all other concerned accordingly.
4. Receipt of this Circular may please be acknowledged.
5. Hindi version will follow.
No.Coord/13(6)/98-99/Vol.IV/294-344
Office of the
Pr. Chief Controller of
Accounts
Central Board of Excise & Customs
A.G.C.R. Buildig, 1st Floor
I.P.Estate, New Delhi.
15.07.2002.
To
Ms. S. Katiyar
Under Secretary (Cx.4)
CBEC, North Block
New
Subject:- Service Tax
on 10 new services - opening of new Heads of Accounts.
I am to enclose a list of new Heads of Accounts opened under the Major Head "0044-Service Tax" in respect of 10 new services brought under the Service Tax as per Finance Bill, 2002. The Serial Code and SCCD Codes allotted have been mentioned against each new Heads of Accouts.
2. It is requested that the new Heads of Accounts may please be intimated to the Commissioners Central Excise & Customs. They may also be advised to issue a Trade Notice for information of the assessees.
New Head ofAccount to be opened
below Major Head 0044 - Service Tax
|
S.No. |
Head of Account |
Description |
Serial Code No. |
SCCD Code No. |
|
1 |
2 |
3 |
4 |
5 |
|
1. |
004400146 00440014601 00440014602 00440014603 |
Minor Head - Life Insurance Service including insurance auxiliary services relating to Life Insurance. Sub-head -Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440184 00440185 00440186 00440187 |
110 119 112 |
|
2. |
004400147 00440014701 00440014702 00440014703 |
Minor Head - Cargo Handling Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440188 00440189 00440190 00440191 |
114 114 117 |
|
3. |
004400148 00440014801 00440014802 00440014803 |
Minor Head - Storage and Warehouse Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440192 00440193 00440194 00440195 |
119 110 111 |
|
4. |
004400149 00440014901 00440014902 00440014903 |
Minor Head - Event Management Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440196 00440197 00440198 00440199 |
113 116 115 |
|
5. |
004400150 00440015001 00440015002 00440015003 |
Minor Head - Rail Travel Agent Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440200 00440201 00440202 00440203 |
115 114 117 |
|
6. |
004400151 00440015101 00440015102 00440015103 |
Minor Head - Health Club and Fitness Centers Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440204 00440205 00440206 00440207 |
119 110 111 |
|
7. |
004400152 00440015201 00440015202 00440015203 |
Minor Head - Beauty Parlours Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440208 00440209 00440210 00440211 |
113 117 114 |
|
8. |
004400153 00440015301 00440015302 00440015303 |
Minor Head - Fashion Designing Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440212 00440213 00440214 00440215 |
116 113 118 |
|
9. |
004400154 00440015401 00440015402 00440015403 |
Minor Head - Cable Operators Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440216 00440217 00440218 00440219 |
110 119 112 |
|
10. |
004400155 00440015501 00440015502 00440015503 |
Minor Head - Dry Cleaning Services Sub-head - Tax collections Sub-head - other receipts Sub-head - Deduct refunds |
00440220 00440221 00440222 00440223 |
115 116 115 |
F.No.149/2/2002-CX.4
Government of
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
8th August, 2002.
Subject: Services provided by BSNL to basic/cellular telephone service providers - regarding.
I am directed to say that doubts have been raised regarding
recovery of service tax on certain services provided by Bharat Sanchar Nigam
Ltd. (BSNL) to Basic Telephone Service Providers (BSTP) and Cellular Mobile
Service Providers (CMSP). References have been received from the Cellular
Operators Association of India,
|
(i) |
'Inter-connection link charges'. These are charges relating to interconnectivity provided between the basic / cellular telephone providers and the BSNL/MTNL exchanges. This enables the private basic telephone operators or the mobile service providers to access BSNL telephone lines and vice-versa. This interconnection can be through a cable owned by the BSNL; in which case a monthly/annual rent is charged. If the cable has been laid/provided by the private basic/cellular telephone service provider no rental is charged by BSNL. |
|
(ii) |
Rentals for junction links'. These relate to charges for using junction links of the BSNL/MTNL from one exchange to another. |
|
(iii) |
'Port charges'. These are something like entry charges for allowing access into the BSNL network. |
|
(iv) |
'Infrastructure charges'. Sometimes the basic as well as cellular telephone service providers need space to keep their own equipments to facilitate the interconnectivity. This space, when provided by the DOT, a rental is covered from them by the DOT. |
2. This
issue had been examined earlier in the Board on a reference received from the
BSNL and a clarification was issued vide letter F.No.149/1/2000-CX.4
dt.14.3.2001 (addressed to BSNL with copies to all Chief Commissioners) that
so far as BTSPs are concerned no service tax was leviable in respect of
services listed at (i), (ii) and (iv) above. The clarification did not mention
anything about 'port charges'.
3. It
has been reported by the DOT that since Board's clarification dt.14.3.2001
referred to BTSPs only, service tax continued to be collected by them on the
same services if provided to the CMSPs.
4. The matter has been examined in the
Board. So far as the above 4 services are concerned, no difference can be drawn
between BTSPs and CMSPs.
5. It
is clarified that in respect of services listed at (ii), (iii) and (iv), above no service tax is presently leviable.
6. So
far as 'inter-connectivity linked charges' are concerned these are
nothing but charges for providing 'leased circuits'. This service
(leased circuits) has been brought under the coverage of service tax w.e.f.
16.7.2001. While issuing Board's clarification dt.14.3.2001 it was inter-alia
intimated that this service was not taxable. However, since 'leased circuits'
have become taxable. However, since 'leased circuits' have become taxable
w.e.f. 16.7.2001 only, Board's clarification dt.14.3.2001 stands modified
accordingly.
7. In
short, no service tax is leviable in respect of services listed at (ii), (iii) and
(iv) above both for BTSP's and CMSP's. However,
service tax is leviable w.e.f. 15.7.2001, on 'inter-connection linked charges'
recovered by BSNL from BTSP's as well as CMSPs.
8. Field
formations may be suitably informed.
9. Suitable
trade notice may be issued for the information of the trade.
10. Receipt of this Circular may please be acknowledged.
11. Hindi version will follow.
S.T. Circular
No.46/09/2002
F.No.149/2/2002-CX.4
Government of
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
8th August, 2002.
Subject: Services provided by BSNL to basic/cellular telephone service providers - regarding.
I am directed to say that doubts have been raised regarding
recovery of service tax on certain services provided by Bharat Sanchar Nigam
Ltd. (BSNL) to Basic Telephone Service Providers (BSTP) and Cellular Mobile
Service Providers (CMSP). References have been received from the Cellular
Operators Association of India,
|
(i) |
'Inter-connection link charges'. These are charges relating to interconnectivity provided between the basic / cellular telephone providers and the BSNL/MTNL exchanges. This enables the private basic telephone operators or the mobile service providers to access BSNL telephone lines and vice-versa. This interconnection can be through a cable owned by the BSNL; in which case a monthly/annual rent is charged. If the cable has been laid/provided by the private basic/cellular telephone service provider no rental is charged by BSNL. |
|
(ii) |
Rentals for junction links'. These relate to charges for using junction links of the BSNL/MTNL from one exchange to another. |
|
(iii) |
'Port charges'. These are something like entry charges for allowing access into the BSNL network. |
|
(iv) |
'Infrastructure charges'. Sometimes the basic as well as cellular telephone service providers need space to keep their own equipments to facilitate the interconnectivity. This space, when provided by the DOT, a rental is covered from them by the DOT. |
2. This
issue had been examined earlier in the Board on a reference received from the
BSNL and a clarification was issued vide letter F.No.149/1/2000-CX.4
dt.14.3.2001 (addressed to BSNL with copies to all Chief Commissioners)
that so far as BTSPs are concerned no service tax was leviable in respect of
services listed at (i), (ii) and (iv) above. The clarification did not mention
anything about 'port charges'.
3. It
has been reported by the DOT that since Board's clarification dt.14.3.2001
referred to BTSPs only, service tax continued to be collected by them on the
same services if provided to the CMSPs.
4. The
matter has been examined in the Board. So far as the above 4 services are
concerned, no difference can be drawn between BTSPs and CMSPs.
5. It
is clarified that in respect of services listed at (ii), (iii) and (iv), above no service tax is presently leviable.
6. So
far as 'inter-connectivity linked charges' are concerned these are
nothing but charges for providing 'leased circuits'. This service
(leased circuits) has been brought under the coverage of service tax w.e.f.
16.7.2001. While issuing Board's clarification dt.14.3.2001 it was inter-alia
intimated that this service was not taxable. However, since 'leased circuits'
have become taxable. However, since 'leased circuits' have become taxable
w.e.f. 16.7.2001 only, Board's clarification dt.14.3.2001 stands modified
accordingly.
7. In
short, no service tax is leviable in respect of services listed at (ii), (iii)
and (iv) above both for BTSP's and CMSP's. However,
service tax is leviable w.e.f. 15.7.2001, on 'inter-connection linked charges'
recovered by BSNL from BTSP's as well as CMSPs.
8. Field
formations may be suitably informed.
9. Suitable
trade notice may be issued for the information of the trade.
10. Receipt of this Circular may please be acknowledged.
11. Hindi version will follow.
S.T. Circular
No.46/09/2002
F.No.149/2/2002-CX.4
Government of
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
8th August, 2002.
Subject: Services provided by BSNL to basic/cellular telephone service providers - regarding.
I am directed to say that doubts have been raised regarding
recovery of service tax on certain services provided by Bharat Sanchar Nigam
Ltd. (BSNL) to Basic Telephone Service Providers (BSTP) and Cellular Mobile
Service Providers (CMSP). References have been received from the Cellular
Operators Association of India,
|
(i) |
'Inter-connection link charges'. These are charges relating to interconnectivity provided between the basic / cellular telephone providers and the BSNL/MTNL exchanges. This enables the private basic telephone operators or the mobile service providers to access BSNL telephone lines and vice-versa. This interconnection can be through a cable owned by the BSNL; in which case a monthly/annual rent is charged. If the cable has been laid/provided by the private basic/cellular telephone service provider no rental is charged by BSNL. |
|
(ii) |
Rentals for junction links'. These relate to charges for using junction links of the BSNL/MTNL from one exchange to another. |
|
(iii) |
'Port charges'. These are something like entry charges for allowing access into the BSNL network. |
|
(iv) |
'Infrastructure charges'. Sometimes the basic as well as cellular telephone service providers need space to keep their own equipments to facilitate the interconnectivity. This space, when provided by the DOT, a rental is covered from them by the DOT. |
2. This
issue had been examined earlier in the Board on a reference received from the
BSNL and a clarification was issued vide letter F.No.149/1/2000-CX.4
dt.14.3.2001 (addressed to BSNL with copies to all Chief Commissioners)
that so far as BTSPs are concerned no service tax was leviable in respect of
services listed at (i), (ii) and (iv) above. The clarification did not mention
anything about 'port charges'.
3. It
has been reported by the DOT that since Board's clarification dt.14.3.2001
referred to BTSPs only, service tax continued to be collected by them on the
same services if provided to the CMSPs.
4. The
matter has been examined in the Board. So far as the above 4 services are
concerned, no difference can be drawn between BTSPs and CMSPs.
5. It
is clarified that in respect of services listed at (ii), (iii) and (iv), above no service tax is presently leviable.
6. So
far as 'inter-connectivity linked charges' are concerned these are
nothing but charges for providing 'leased circuits'. This service
(leased circuits) has been brought under the coverage of service tax w.e.f.
16.7.2001. While issuing Board's clarification dt.14.3.2001 it was inter-alia
intimated that this service was not taxable. However, since 'leased circuits'
have become taxable. However, since 'leased circuits' have become taxable
w.e.f. 16.7.2001 only, Board's clarification dt.14.3.2001 stands modified
accordingly.
7. In
short, no service tax is leviable in respect of services listed at (ii), (iii)
and (iv) above both for BTSP's and CMSP's. However,
service tax is leviable w.e.f. 15.7.2001, on 'inter-connection linked charges'
recovered by BSNL from BTSP's as well as CMSPs.
8. Field
formations may be suitably informed.
9. Suitable
trade notice may be issued for the information of the trade.
10. Receipt of this Circular may please be acknowledged.
11. Hindi version will follow.
F.No.149/2/2002-CX.4
Government of
Ministry of Finance & Company Affairs
Department of Revenue
Central Board of Excise & Customs
16th August, 2002.
CORRIGENDUM
Subject: Services provided by BSNL to Basic/Cellular telephone service providers - regarding.
Please refer to ST Circular No.46/09/2002-CX dated 8th August, 2002 issued under F.No.149/02/2002-CX.4 on the subject mentioned above.
2. The date given in para 7 of the said Circular may please be read as '16.7.2001' for '15.7.2001'.
3. The field formations and Trade may suitably be informed.
4. Receipt of this Corrigendum may please be acknowledged.
5. Hindi version will follow.
Suraksha Katiyar
Under Secretary (CX.4)
F.No.137/17/2002-CX.4
Government of
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
30th July, 2002.
Subject: Website for posting Service Tax Revenue - Reg.
I am directed to say that the monthly revenue figures of
service tax are routinely required by the Board for taking policy decisions. A software for capturing the total service tax revenue from
each Commissionerate for each month has been developed by Directorate of
Systems and is installed at website - http.//sermon nic.in. This website can be
of help only if all commissionerates post data on service tax regularly.
2. However, some doubts have been raised by some Commissionerates about the periodicity and due date of their report as Board vide, F.No.137/09/2000-CX.4 dated 05.06.2000 had prescribed quarterly returns whereas service tax returns (ST 3 return) are filed half-yearly now.
3. Matter has been examined. Monthly figures of service-wise revenue should be obtained by each CCE from focal point Bank and from PAO and posted on the website. The amount booked by PAO in a month (irrespective of the date of the Challan) should be shown by the CCE as provisional collection for the month. Interest/penalty should be included in the revenue figures, if they can not be segregated. Otherwise they should be shown separately. The monthly figures should be posted on the website by 7th of the next month. Every six months the correct six monthly revenue figures should be posted on the basis of ST-3 returns.
4. For
telephones (except MTNL) where service tax is not being paid through TR-6 Challans
till now, figures of book transfer should be ascertained from BSNL/DOT or the
Pr.CCA. However, as per Board's Circular No.33/1/2001 dated 29.1.2001.
BSNL is required to pay service tax through TR-6 Challan only in the respective
Banks.
5. The field formations may suitably be informed.
6. Receipt of this Circular may please be acknowledged.
7. Hindi version will follow.
Circular
No.42\05\2002-ST
29th
April, 2002
F.No.176/3/2001-CX.4
Government of India
Ministry of Finance
Department of Revenue
Sub.: Payment of service tax by M/s.
M/s.
2. The Central Excise Officers were of the view that the said art gallery falls within the definition of Mandap Keepers as per section 65 of the Finance Act, 1994.
3. The matter has been examined by the Government. ‘Mandap Keeper’ has been defined under section 65 of the Finance Act, 1994 as a ‘person who allows temporary occupation of a Mandap for a consideration for organizing any official, social or business function’. The limited issue, therefore, to be decided in this case is whether art exhibitions held in the premises of an art gallery can be treated as social/business functions. The Board, vide letter F.No.332/82/97-TRU dt.24.9.97, had clarified that hotels and restaurants, which let out their banquet halls, rooms, gardens etc. for holding/organizing any marriages, parties, conferences, shows etc., are covered under the definition of a Mandap Keeper. It was further clarified that programmes of dance, drama and music are social functions and letting out of a hall for holding these programmes is liable to service tax under the category of Mandap Keeper.
4. The exhibition of art and artifacts do not fall under any of the categories mentioned in Board’s letter dt.24.9.97. It is, therefore, clarified that renting out of premises by art galleries for such exhibition will not be liable to service tax under the category of Mandap Keeper.
5. Field formations may be suitably informed.
6. Trade notices may be issued for the information of the trade.
7. Hindi version of the circular will follow.
8. The receipt of the circular may kindly be acknowledged.
S.T. Circular No.
39/2/2002.
20th
February, 2002
F.No.137/2/2002-CX-4
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Excise & Customs)
Subject: Service Tax on Clearing & Forwarding Agents –
Clarification reg.
It has been brought to the notice of the Board, that certain doubts have emerged, whether, Service Tax is leviable on ICDs/CFS dealing with import/export cargo as "C&F agents". In this regard, the matter is clarified as under.
2. As
defined under Section 65 (16) of the Finance Act, 1994 "C&F
agent" means any person who is engaged in
providing any service, either directly or indirectly, connected with the
clearing & forwarding operations in any manner to any other person and
includes a consignment agent. As per clause(j) to
Section 65 (72), taxable service means, any service provided to a client by a
clearing and forwarding agent in relation to clearing and forwarding operations
in any manner.
3. Normally C & F agents do the job of clearing and forwarding. In a typical situation clearing & forwarding agents are appointed in outstation location by manufacturers or wholesale distributors so that they may clear the goods, store them and then forward the goods according to the instructions of the Principal owner. Thus the person concerned is an agent and an agent is an authorised representative of a named principal owner.
4. There is a contract between the principal (owner) and C&F agent detailing the terms and conditions and also indicating the commission or renumeration to which the C&F agent is entitled. Therefore, ICDs/CFS can not be considered as C&F agents on the following grounds:
(i) There is no agreement or contract between service Provider (ICD/CFS) and Service receiver (importer/exporter);
(ii) ICDs/CFS are functioning under authority of Govt. of India and not for any principal or owner (importer/exporter).
5. It is also clarified that, so far as domestic handling of cargo by the container Depots is concerned, (like CONCOR), their case may be examined separately. If they do not meet the parameters mentioned in Board’s letter F.No.B/43/7/97-TRU dated 11.7.97, they will also not be considered as C & F Agents.
6. Suitable Trade notices may be issued for information of the trade.
7. Field formations may be advised suitably.
8. Receipt of this Circular may please be acknowledged.
9. Hindi Version will follow.
Circular
No.ST-40/03/2002-CX
21st
February, 2002.
F.No.137/24/99-CX.4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Subject: Introduction
of Service Tax Code (STC) Number based on Permanent Account Number (PAN)
allotted by the Income Tax – Instructions – regarding.
In continuation of Board’s Circular No.35/3/2001-CX.4 (F.No.137/24/99-CX.4) dated 27.08.2001 on the subject noted above, the following further instructions are given in the allotment of STC Number to Service Tax assessees:-
1. Now the National Informatics Centre in consultation with the Directorate General of Service Tax and Directorate of Systems has developed a software for Allotment of the new PAN based STC Number.
2. This software will run on a central computer and a Central Excise formations can access the server using internet and enter the details in the application form submitted by assessees. The computer will allot unique codes and the Allotment Letter can be printed by the excise formation keying in the data.
3. Now that the central computer will ensure the uniqueness of
the code allotted it will not be necessary to send any application to the
office of the Commissioner or the office of the DGST and in all cases the
application is to be keyed by the Division where is the application submitted.
Where the Commissionerate Headquarters is directly dealing with Service Tax
Payers the data has to be keyed in by the Commissionerate Headquarters.
4. Since the database in the computer will have details of all the registered offices of the assessee it will not be necessary to furnish such details in item 4 of Annexure-II to Circular 35/3/2001-CX.4 dt.27.08.2001 (Application Form). However, in case of an assessee following centralized billing/accounting in terms of sub rule (2) and sub rule (3A) of Rule 4 of the Service Tax Rules, 1944, it will be necessary to furnish such details.
5. Having recognized the need to achieve higher degree of accuracy in addresses of the applicants, a structure is being prescribed for Address in item 3 of Annexure-II.
6. The applicant should also indicate in Annexure-II, the names of services being provided from the registered premises. Therefore, an item is being added in Annexure-II.
7. The Allotment Letter to be sent to Assessee should indicate the account head in which he is required to remit the taxes and other dues, since correct indication of these account heads will facilitate the proper accounting and reconciliation of revenue accounts will also be easy. Therefore, an item 5 is being added in Annexure-III.
8. Modified Annexures-II & III are enclosed.
9. User guide for allotment of PAN-based STC through internet, is being circulated to field formations by ADC(Systems), Chennai, this user’s guide will be available on www. cbec.gov.in. by 28.02.2002.
10. Suitable Trade notices may be issued for the information of the Trade.
11. Receipt of this Circular may please be acknowledged.
12. Hindi version will follow.
Annexure – II
(In
Duplicate)
(To be filed in the Service Tax Cell)
FORMAT FOR APPLICATION FOR OBTAINING
SERVICE TAX CODE NUMBER
To
The
Deputy/Assistant Commissioner,
(Address of the Service Tax Cell).
Sir,
Subject:- Allotment of Service Tax Code Number – Regarding.
I/We may kindly be allotted Service Tax Code Number (STC Number) for which the details are as under:-
FORMAT FOR THE DETAILS (All entries
shall be in BLOCK letters)
1. Name of the Applicant (S): _________________________________
2. Permanent
Account Number: _________________________________
(Issued by Income Tax Department) (Attested copy to be enclosed)
3. Applicant’s Premises or Offices registered under Rule 4 of Service Tax Rules, 1994. Existing Classification Code, if any:
Registration Number :
Address:
Door / Flat / Block :
Name of Premises / Building / Village :
Road / Street / Lane / Locality / Town :
Main Post Office :
City / District :
Pin Code :
State :
Telephone Nos.:
Fax Nos.:
e-mail Address
Division
____________ Commissionerate ______________ Location Code (To be filled
by the Service Tax Cell (Headquarter/Division) __________________
4. Names of Services provided from the registered premises by the applicant:
(a)
(b)
5. Does this office pay tax for services rendered :
from other Premises under Central
Billing system : YES / NO
(sub-rule (2) and (3A) of Rule
4 :
If
yes, give the following details for other Premises / Office
|
S.No. |
Name and |
Service being provided |
Tel. No(s). |
Fax No. |
E-mail No. |
|
1 |
2 |
3 |
4 |
5 |
6 |
|
|
|
|
|
|
|
Please
furnish the aforesaid information for each of the other registered premises of offices.
Address should be furnished in the following format
Address:
Door / Flat / Block :
Name of Premises / Building / Village :
Road / Street / Lane / Locality / Town :
Main Post Office :
City / District :
Pin Code :
State :
I/We hereby certify that the information given in this form is true, correct and complete in every respect and that I am authorized to sign on behalf of the applicant.
(Signature of the authorized person)
Date:
Place:
NOTE:
1. Use
separate application form for each registered premises or offices, for
allotment of STC Number.
2. Location
Code is to be filled by the Service Tax Cell, Headquarter or Division, based on
the new codes allotted by the Directorate of Statistics and Intelligence only.
3. Telephone
numbers / Fax Numbers/ E-mail address is to be filled if available.
Acknowledgement
Subject: Allotment of Service Tax Code Number – regarding.
Your application for allotment of STC Number received on ___________ is hereby acknowledged. The Receipt Number is ______________ dated _____________ .
(Signature of the Inspector)
with Official Seal
Modified Annexure-III
(Address of the formation issuing the letter)
F.No. …………………..
Date:
To
(Name and Address of the Party)
Sir/Madam,
Subject:- Allotment of Service Tax Code Number –
Application Receipt No. ………. Dated…………
1. In
place of your existing Classification Code(s) ___________, the STC Number is
________________ .
Or
Your STC Number is:_____________________________
2. The
Location Code concerning your registered premise or office is
___________________ .
3. You
are advised to deposit Service Tax and other related Government dues in any of
the authorised branches of the nominated bank(s) i.e. _____________________ .
4. You re
requested to use the STC Number along with the existing Classification Code (if
any) till 01-07-2002 on the requisite documents/records. The STC number shall
be exclusively used with effect from 01-07-2002.
5.
You
are advised to indicate account heads as indicated below in all challans used
for remitting service tax or other dues (interest, penalty, etc)
|
Service Dues |
A/c Head
For Tax |
A/c Head
For Other |
Signature of the officer with
Designation and
With official seal.
Place:
CC: To
1. The Pay and
Accounts Officer (Commissionerate Name),
2. The
Superintendent of Central Excise (Range Name-where applicable)
S.T.Circular
No.38/1/2002-CX
7th
February, 2002.
F.No.137/29/2001-CX.4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Sub.: Audit of Service Tax assesses/records
Attention is invited to Board’s Circular No.19/13/96 dt.21.11.1996 wherein instructions were issued for auditing of assesses providing services relating to telephones, insurance and stock broking. The following instructions are issued in partial modification of the said instructions.
2. Since service tax has been in operation for over 7 years now, departmental officers as well as the service providers have by now become familiar with the rules and procedures relating to service tax administration. It has therefore been decided by the Board to extend the coverage of service tax audit to other services also on a selective basis.
3. An Expert Group (EV-07) has already been constituted under the CIDA Project to go into this aspect in details and suggest audit procedures for every service, keeping in mind the specific nature and peculiarity of each service. Once this study is completed it is proposed to bring out a comprehensive Service Tax Audit Manual on the lines of the manual issued for Central Excise Audit Till then, the following guidelines are prescribed for immediately initiating audit of selected service tax assessees .
4. Only
those assesses will be taken up for audit who are registered in the
Metropolitan cities of
5. In respect of Stock broking, Telephones and non-life Insurance, audit will continue to be done as per norms indicated in Board’s Circular of 21.11.96 and selection of assessees by the Commissioners. In respect of these three services the Audit will, obviously, not be confined to metropolitan cities only.
6. The Audit of assesses listed in Annexure-I should be confined to the accounts for the years 1999-2000 onwards only. In respect of services which have been brought under the tax net in July, 2001, the Audit period will be July 2001 till the date of Audit. The Audit of each selected assessee should be completed in not more than 10 working days.
7. The audit would be conducted as per proforma Annexure- II (enclosed). This proforma is based on the EA-2000 Audit being carried out on the Central Excise side.
8. Efforts should be made to have the Audit done by teams of officers who are already familiar with EA-2000 Audit. Before proceeding with the Audit the teams should familiarize themselves properly with the law and procedures relating to Service Tax. The teams should ensure that during the course of Audit there is minimum hindrance in the normal working of the assessee.
9. Attempt should be made to conduct as many such audits during the remaining months of the current financial year so that short levies detected, if any, can be realized during this year itself.
10. Receipt of this Circular may be acknowledged.
11. Hindi version will follow.
ANNEXURE
- I
NAMES
OF ASSESSEES FOR SERVICE TAX AUDIT DURING 2001-2002
|
Sl No |
Service |
No of assessees |
Name of assessee |
Commissionerate |
|
(1) |
(2) |
|
(3) |
(4) |
|
1 |
Advertising |
1 |
Lintas India Ltd. |
Mumabi-IV |
|
|
|
2 |
Ogilvy & Mather |
Mumabi-1 |
|
|
|
3 |
Ogilvy & Mather |
Chennai-II |
|
|
|
4 |
Hindustan Thompson Associates Ltd. |
Chennai-II |
|
|
|
5 |
Euro RSCG Adv.(P) Ltd. |
Kolkata.1 |
|
|
|
6 |
Hindustan Thompson Associates Ltd. |
Kolkata 1 |
|
|
|
7 |
Hindustan Thompson Associates Ltd. |
Delhi.1 |
|
|
|
8 |
Lintas |
|
|
2 |
Pagers |
1 |
DSS |
Mumbai-V |
|
|
|
2 |
Page Point |
Mumabai-II |
|
|
|
3 |
RPG Paging Services (P) Ltd. |
Chennai-II |
|
|
|
4 |
DSS |
Chennai-II |
|
|
|
5 |
Microwave Communication Radio Ltd. |
Kolkata-1 |
|
|
|
6 |
Easy Call Communication(P) Ltd. |
Kolkata-1 |
|
|
|
7 |
R.P.G. Pager Services |
|
|
|
|
8 |
DSS Mobile Communication Ltd |
|
|
3 |
Couriers |
1 |
DHLWorld Wide Express |
Mumbai-IV |
|
|
|
2 |
Prakash Air Freight Ltd. |
Mumabi-IV |
|
|
|
3 |
Safe Express |
Chennai-II |
|
|
|
4 |
.Professional Couriers |
Chennai-II |
|
|
|
5 |
First Flight Couriers Ltd. |
Kolkata.1 |
|
|
|
6 |
Safe Express Pvt. Ltd. |
Kolkata.1 |
|
|
|
7 |
Overnite Express Ltd. |
Delhi.1 |
|
|
|
8 |
Blaze Flash Couriers Pvt Ltd |
|
|
4 |
CHA |
1 |
Damani Shipping Pvt. Ltd. |
Mumabi-1 |
|
|
|
2 |
Babaji Sriram Cleaning & Carriers (P) Ltd |
Mumabi-1 |
|
|
|
3 |
Vignesh Freight Forwarders |
Chennai-I |
|
|
|
4 |
National Clearing & Shipping |
Chennai-I |
|
|
|
5 |
Lee & Muirhead Ltd. |
Kolkata.1 |
|
|
|
6 |
Ripley & Co. Ltd. |
Kolkata.1 |
|
|
|
7 |
Lee & Muirhead Ltd. |
|
|
|
|
8 |
P.S. Bedi &Co |
Delhi.1 |
|
5 |
Steamer Agents |
1 |
Freight Systems India Pvt. Ltd. |
Mumabi-IV |
|
|
|
2 |
Samrat Shipping & Transport Systems Pvt.Ltd |
Mumabi-I |
|
|
|
3 |
German Express Shipping Agency (I) Pvt. Ltd. |
Chennai-I |
|
|
|
4 |
A S Shipping Agency P Ltd. |
Chennai-I |
|
|
|
5 |
Sea Horse Ship Agencies Pvt. Ltd. |
Kolkata.1 |
|
|
|
6 |
Imsa Shipping Agency Pvt. Ltd. |
Kolkata.1 |
|
|
|
7 |
Inter Ocean Shipping |
Delhi.1 |
|
|
|
8 |
Seal Air Freighter |
|
|
6 |
Air Travel Agent |
1 |
Friends Global Travel |
Mumbai-IV |
|
|
|
2 |
Padmaja |
Mumabai-II |
|
|
|
3 |
Bharat Travel Service (P) Ltd. |
Chennai-1 |
|
|
|
4 |
Euro Link International |
Chennai-I |
|
|
|
5 |
Laxmi Narayan Air Travrels( P) Ltd. |
Kolkata-1 |
|
|
|
6 |
Thomas Cook ( |
Kolkata-III |
|
|
|
7 |
Pearl International Tour & Travels (P) Ltd. |
Delhi.1 |
|
|
|
8 |
American Express |
|
|
7 |
Man Power Recruitment Agency |
1 |
Considia H.R. Services |
Mumabi-1 |
|
|
|
2 |
Tristar Consultants |
Mumbai-IV |
|
|
|
3 |
Ma Foi Management Consultant Ltd. |
Chennai-II |
|
|
|
4 |
ABC Consultants |
Chennai-II |
|
|
|
5 |
V.K. Dhawan Consultants |
Kolkata-1 |
|
|
|
6 |
Surana Equits(P) Ltd. |
Kolkata-1 |
|
|
|
7 |
|
|
|
|
|
8 |
Leading Age Market Pvt Ltd |
|
|
8 |
Tour Operator |
1 |
Mercury Car Rental Ltd. |
Mumbai-I |
|
|
|
2 |
Kesari Group |
Mumbai-IV |
|
|
|
3 |
GRT Tours & Travels |
Chennai-II |
|
|
|
4 |
Diana World Travel P Ltd. |
Chennai-II |
|
|
|
5 |
Kundu Special |
Kolkata.1 |
|
|
|
6 |
Banerjee Special |
Kolkata-1 |
|
|
|
7 |
Ashoka Travels & Tours |
Delhi.1 |
|
|
|
8 |
KTC |
|
|
9 |
Credit rating |
1 |
Lira Ltd. |
Mumbai-1V |
|
|
Agency |
2 |
The Credit Rating Information Services Of India Ltd. |
Mumbai-IV |
|
|
|
3 |
ICRA Ltd. |
Chennai-II |
|
|
|
4 |
Flitch Ratings India Pvt. Ltd. |
Kolkata-1 |
|
|
|
5 |
ICRA Ltd. |
Kolkata-1 |
|
|
|
6 |
ONICRA Credit Rating Agency of |
|
|
|
|
7 |
ICRA Ltd |
|
|
10 |
Chartered Accountant |
1 |
Patel & Deodhar |
Mumbai-IV |
|
|
|
2 |
Bhuchar & Chandak |
Mumbai-IV |
|
|
|
3 |
Price Waterhouse |
Chennai-II |
|
|
|
4 |
Brahmaya & Co |
Chennai-I |
|
|
|
5 |
Pricewater House |
Kolkata.1 |
|
|
|
6 |
Lovelock & Harris |
Kolkata.1 |
|
|
|
7 |
S.R. Batliboi & Co. |
Delhi.1 |
|
|
|
8 |
Price Water House |
|
|
11 |
Market Research Agency |
1 |
ORG MARG |
Mumbai-1 |
|
|
|
2 |
Indica Research Pvt. Ltd. |
Mumbai-I |
|
|
|
3 |
Francis Kanoi |
Chennai-II |
|
|
|
4 |
ORG Marg |
Chennai-II |
|
|
|
5 |
C. MARC ( |
Kolkata.1 |
|
|
|
6 |
ORG- MARG Research Ltd. |
Kolkata.1 |
|
|
|
7 |
Hindustan Thompson Associates Ltd. |
Delhi.1 |
|
|
|
8 |
ORG Marg Research Consultancy Group (P) Ltd |
|
|
12 |
Real Estate Agents |
1 |
Mahindra Realty Infrastructure Ltd. |
Mumbai-IV |
|
|
|
2 |
Raheja Construction Pvt. Ltd. |
Mumbai-IV |
|
|
|
3 |
Hanu Reddy Realty |
Chennai-II |
|
|
|
4 |
Residency Properties & Development Ltd. |
Chennai-II |
|
|
|
5 |
N.K. Agarwal Estate(P) Ltd. |
Kolkata.1 |
|
|
|
6 |
Champalal & Co. |
Kolkata.1 |
|
|
|
7 |
C.B. Richards Ellis South Asia Pvt. Ltd.. |
Delhi.1 |
|
|
|
8 |
Cushman & Weikfield |
|
|
13 |
Security Agency |
1 |
Monitron Security Pvt. Ltd. |
Mumbai-IV |
|
|
|
2 |
|
Mumbai-1 |
|
|
|
3 |
SDB Cisco |
Chennai-II |
|
|
|
4 |
Tamilnadu Ex-servicemen |
Chennai-II |
|
|
|
5 |
Security & Investigation Bureau |
Kolkata-III |
|
|
|
6 |
Spot Light(P) Ltd. |
Kolkata.1 |
|
|
|
7 |
Group 4 Securities |
Delhi.1 |
|
|
|
8 |
Sentinals Securities |
|
|
14 |
Underwriter |
1 |
Jardine Fleming India Securities Ltd. |
Mumbai-I |
|
|
|
2 |
SBI Capital Markets Ltd. |
Mumbai-1 |
|
|
|
3 |
SMIFS Capital Markets Ltd. |
Kolkata.1 |
|
|
|
4 |
Sumedha Fiscal Services Ltd. |
Kolkata 1 |
|
15 |
Management Consultant |
1 |
Mckinsey & Co. |
Mumbai-1 |
|
|
|
2 |
Accenture |
Mumbai-1 |
|
|
|
3 |
KPMG India Pvt. Ltd. |
Chennai-II |
|
|
|
4 |
Flaten Investment Engg. Co. Ltd. |
Chennai-II |
|
|
|
5 |
Price Waterhouse Coopers Ltd |
Kolkata-III |
|
|
|
6 |
Tata Consultancy Service |
Kolkata-III |
|
|
|
7 |
Price Water House Coopers Ltd. |
Delhi.1 |
|
|
|
8 |
A.T.Karney |
|
|
16 |
Scientific & Technical Services |
1 |
Empire Industries Ltd. |
Mumbai-IV |
|
|
|
2 |
SASMIRA |
Mumbai-IV |
|
|
|
3 |
Centre For Total Quality Management |
Kolkata.1 |
|
|
|
4 |
National Productivity Council |
Kolkata.1 |
ANNEXURE
– II
AUDIT NOTE NO. - ---------
TAX PAYER - M/S ABC
AUDITORS:
S/ SHRI X,Y AND Z
CUSTOMS
& CENTRAL EXCISE COMMISSIONERATE, ----------
-----------------------------------------------------------------------------------------
OFFICE OF THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, INTERNAL AUDIT BRANCH,
----------------
F.No. ---------------- Dated --- February, 2002
To,
Assistant Commissioner,
Customs & Central Excise, --------
Sub: - Audit Report drawn in respect of Taxpayer
– M/s ABC for the period: ---------------------
Enclosed please find Audit Report drawn in respect of Taxpayer – M/s ABC for the period: ----------. In this connection, you are requested to please take immediate suitable action to safeguard government revenue under intimation to the audit.
Enclosure
– ---------
|
|
(XYZ) |
|
|
ASSISTANT COMMISSIONER (AUDIT) |
Copy to –
1. The Deputy Commissioner (Prev),
Central Excise Hqrs, --------for information.
2. The Superintendent,
3. The Audit Report Master file
|
|
(XYZ) |
|
|
ASSISTANT COMMISSIONER (AUDIT) |
Index
|
SR. NO. |
ITEMS |
PAGE NO. |
|
1. |
Summary of audit reports |
1 |
|
2. |
Summary of audit results |
|
|
3. |
Detailed Audit (Annexure – ‘A’) |
|
|
4. |
Enclosures (Annexure – ‘B’) |
|
|
5. |
Working Papers (Annexure – ‘w/p – ‘A’ to ‘—’) |
|
PART-1
SUMMARY OF AUDIT REPORTS
|
1. |
Name & Address of the Taxpayer |
M/s ABC, -------- |
|
2. |
Its HO, Regional/ Branches offices etc. |
|
|
3. |
Status of the Taxpayer |
|
|
4. |
Jurisditional Commissionerate/ Division/ Range |
Commissionerate - |
|
5. |
Name of taxable services provided to clients |
|
|
6. |
Registration No. |
|
|
7. |
Exemption Notification No. & its effective date along with gist of exemption notification |
|
|
8. |
Date of Last Audit |
|
|
9. |
Period for which Current Audit undertaken |
|
|
10. |
Dates on which audit undertaken |
|
|
11 |
Unconfirmed demand, if any |
|
|
12. |
Confirmed demand if any |
|
|
13. |
Appeal filed if any |
|
|
14. |
Tax, Interest & Penalty paid during the current audit period |
|
|
15. |
No. of Revenue Paras |
|
|
16. |
No. of Procedural Paras |
|
|
17. |
Total Revenue involved in audit paras |
|
PART - 2
SUMMARY OF AUDIT RESULTS
[Provide an outline of important and
material non-compliance issues identified during the Audit. Indicate if the
TAXPAYER has agreed to improve]
The
important and material non-compliance issues identified and reaction of the
assessee is indicated in the table given below: -
|
AUDIT |
GIST OF OBJECTIONS |
REVENUE IMPLICATIONS, IF ANY, |
TAX PAYER’S AGREEME - NT YES/ NO, IF NO REASONS FOR DISAGREEMENT |
DEPARTMENT -'S CONCLUSION WITH REASONS. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL REVENUE INVOLVED = |
Rs.- |
|
||
|
|
(XYZ) |
|
|
ASSISTANT COMMISSIONER (AUDIT) |
PART- 3
WORKING PAPER
1. PRELIMINARY REVIEW:
1.1 audit file
review:
[Review audit file to determine nature of the organisation, its operations, service provided, results of last audit and the reasons it was selected for audit this time.]
1.2 Review
information in Range Office:
[Review information available in the Range office, i.e. Returns filed, Tax paid & List of records/returns filed. Check if any anti evasion action is in progress]
1.3 Review
Amendment in Laws:
[Review amendment in laws after the last audit and its compliance]
1.4 Develop tentative plan for audit, identifying potential area for audit:
[Where necessary, discuss tentative plan with the AC/DC or JC/ADC]
|
SR. NO. |
AREA |
PERIOD |
SELECTION |
|
1. |
|
|
|
|
2. |
|
|
|
|
3. |
|
|
|
1.5 Contact tax payer & set up an
appointment:
[Keep a log where taxpayer appears to be stalling.]
2. Gathering
and Documenting Systems Information:
2.1 Interview
& organisational information:
A). Person
(s) Interviewed and Title:
[Name of the persons who have been interviewed and their statements in brief]
B). Organisational
Information:
[Identify the head Office/ registered office or regional/ branch offices of the taxpayer, location of its operations and location of its accounting records. Also the offices who are billing services]
C). Organisational
Type and Ownership:
[Confirm organisation, whether proprietorship, partnership or a Pvt Ltd or Ltd company]
D). Organisation
Chart:
[Obtain the organisation chart or describe the organisation structure if chart is unavailable. Note responsibilities of key personnel and any recent changes, particularly in personnel involved in tax accounting.]
2.2 Financial
and Tax Accounting Information:
A). Business
Records:
[Obtain audited financial statements, trial balance and chart of accounts. In case of audited statements, note name of the chartered accountants and review any notes to the financial statements.]
B). Consolidated
Internal Financial Statements:
[If unit is a division of a company, check if internal financial statements are prepared for the unit being audited before consolidation with other related units. Obtain a copy of last two reports.]
C). Business
Activities:
[Identify all business activities – commercial and non-commercial. For each activity & services indicate annual volume in Rupees. Attach additional working paper if necessary.]
D). Tax
Accounting:
[Describe how the taxpayer accounts for service taxes, indicating registers/ledgers used]
E). Tax
Accounting – special situations:
[Clarify how service tax is accounted for in special situations such as service provided to related units, bills cancelled/revised, excess/ short payment of taxes.
Identify special registers or accounts maintained for such transactions.]
2.3 Service
Information:
A). Pattern:
[List major clients, services provided and indicate annual volume in Rupees. Attach additional working paper, if necessary.]
B). Service - special situations:
[Identify any special situations such as service to related unit.]
C). OTHER
REVENUE [ not connected with any notified service];
[Identify other revenues as reported in the financial statements.]
D). Miscellaneous:
[Identify any other issue that becomes known during the interview stage. Note other items, such as in-house magazines.]
3. Tour of the
Premises:
[Tour the premises accompanied with appropriate personnel. Observe operations to confirm information received to date and to note areas that may be vulnerable to non-compliance. Ask about the number of workers in the organisation and if any shift work is done. This may not be needed in case of majority of services generally]
4. Evaluation
of the Internal Controls:
4.1 General/ Tax Accounting:
A). System
Review:
[Review and describe Service (Revenue) and tax Accounting and any other service tax related systems. Summarise the flow of information, procedures used for recording transactions and indicate person responsible for various functions.]
B). Controls
that impact TAXES:
[Identify and describe any internal controls within these systems that have an impact on accounting for service tax. Check if there have been any system or personnel changes in key areas. If yes, review the changeover period with care.]
C). Walkthrough
– Service System:
[Perform a walkthrough of the Service/ Revenue System. Trace a sample of transactions (all types). Amend systems descriptions to match findings in the walkthrough.]
D). Walkthrough
– Other System(s):
[Perform a walkthrough of any other system (e.g. Journal Entries & other adjustments etc.). Trace a sample of transactions, of all types from source documents through to the service tax account. Amend systems descriptions to match findings in the walkthrough.]
E). Walkthrough
– service Tax Return:
[Perform a walkthrough of the process of compiling a tax return for one quarter/ six months, tracing from tax return amounts through to their sources. Amend systems descriptions to match findings in the walkthrough.]
F). Postings to
the General Ledger:
[Test postings from the books of original entry, i.e. Service and other journals, to the General Ledger. Verify that taxes are correctly recorded.]
G). TAXES in GL:
[Verify mathematical accuracy of taxes by performing test adds on the GL and Journals. Note that even if the records are computerised, the test add should be done to detect programming "bugs".]
I). High Value
Transactions in GL and in Journals:
[Review GL, General Journal and journals for high value transactions related to Taxes. Consider tracing these to the source documents.]
4.2 Service /
Revenue System:
A). providing
Services:
[Review key controls that prevent or detect the providing of services that are not invoiced. (Can service be provided without recording them?)]
B). Recording
of invoices:
[Review key controls that prevent or detect supply of services that are invoiced but not recorded. (Can services be invoiced but the invoice not recorded in the system?).These may include pre-numbered invoices, authorisation to cancel an invoice etc. etc.).]
C). Recording
of Cash transactions:
[Review key controls that ensure that all cash revenues are recorded. (How does a unit make sure all cash transactions are recorded and deposited in the bank?) The controls may include pre-numbered cash transaction invoices, daily reconciliation of cash invoices, separation of taxes etc. etc.]
D). types
of services:
[Review key controls that prevent or detect the mis -classification of services for exemption.]
E). Credits
for returns:
[Review key controls that ensure adjustments are made to taxes payable for all credits issues for amendment of invoices.]
F). Other:
[Review any other key internal controls within the Service/ Revenue system on which you can rely.]
G). Other internal controls:
[Review other key controls that prevent or detect under-valuation of service tax.]
H). Conclusions:
TABLE –14
|
ITEMS |
CONCERNS |
|
|
|
|
|
|
|
5. ANALYSIS,
AUDIT PLAN & ASSESSMENTS
1. Risk Loss
Analysis (Reasonableness Tests):
A). service tax:
[Prepare the risk loss analysis, covering a period of one year or a minimum of one return, for service tax and provide your conclusions as to the significance of the potential revenue loss. Indicate possible problems and therefore the audit steps that might be indicated.]
[NB – A SAMPLE RISK LOSS ANALYSIS FORMAT IS GIVEN AS PER ANNEXURE –‘A’]
6. Trend
Analysis
[Perform appropriate trend analysis to check the overall
reasonableness and consistency of data provided by a taxpayer. Identify
potential problem areas and audit steps required verifications of tax
implications.]
Auditors should verify the invoices/Bills issued for audit
period and the same should be compared with present invoices being issued to
ascertain the rates being charged for past and present. Similarly, expenses
incurred (including Capital Investment) as compared to Income should also be
examined
7. Audit
Plan:
[The audit plan must be based on information gathered so far before starting the audit and must be specific.]
|
SR |
AREA |
PERIOD |
SELECTION CRITRIA |
VERIFICATION |
COMMENTS |
ALLOTTED TO SHRI (INSP.) |
|
|
(i) |
(ii) |
(iii) |
(iv) |
(v) |
(vi) |
|
1. |
Registration – (i) whether registration done as per Board’s Circular No 35/3/2001 CX dt 27.8.2001; (ii) since it is not transferable, whether the registration is in the name of the person who actually engaged in the providing of services |
|
|
|
|
|
|
2. |
(i) Whether the tax is paid in the designated bank under proper TR-6 challan and the Tax-return is filed in time; (ii) whether amended return being filed after notfn no 10/2001 –ST dt 9.10.2001; (iii) if the tax is paid after due date whether the interest at the proper rate is paid or not; (vi) and whether taxpayer has claimed any abatement from tax on account of amount not collected from the clients. |
|
|
|
|
|
|
3. |
(i) In case of provisional assessment whether the taxpayer has applied for it giving cogent reasons; (ii) whether the AC/DC has given his express approval for it; (iii) whether a statement in the form of ST-3A giving details of service tax deposited or liable is filed along with tax return; and (iv) whether assessment in the process of finalisation t. |
|
|
|
|
|
|
4. |
Tax paid amount – (i) whether the tax paid is proper under the law i.e. on gross amount, not on the net amount – (ii) whether it has not been undervalued by not included other incidental charges, and (iii) whether it has been reported by the RO to the AC/DC who has to pass an order in this regard. |
|
|
|
|
|
|
5. |
Whether excess service tax paid has been correctly adjusted periodically on pro-rata basis |
|
|
|
|
|
|
6. |
Penalty or Interest recovered – whether it is properly calculated. |
|
|
|
|
|
|
7. |
Exemption – Whether it is correctly availed |
|
|
|
|
|
|
8. |
Verification of taxable service from other records / returns –whether the taxable service has been cross verified from other records/ returns (i.e. such returns which are filed with government or financial institutions) maintained by the taxpayer. |
|
|
|
|
|
8. Verification:
[Carry out verification as planned. Note W/P Ref. in the last column of audit plan above. Where audit plan had to be altered, provide suitable comments ]
9. Summary of
Audit findings and assessment
[Once the verification, as per the audit plan, is complete, all of the assessments must be rolled up for presentation to and discussions with the supervisor and the assessee.](The results must be presented in a logical manner and should be cross- indexed so that it would be easy to follow both by the assessee and Departmental officers).
10. Assessee
agreement/ disagreement with the reassessment:
[Make a note of the date and name of person (s) present when the results of the audit were discussed with the assessee. Indicate their agreement or disagreement, with all or part of the assessment. Where extra time is requested to review the assessment, set up a log for follow-up.]
11. Collections
of Audit Assessment:
[Where the taxpayer agreed and made a payment, in full or in part, note details of the payment received. In case where substantial amount remains outstanding, provide your comments on taxpayer’s ability to pay, considering his present financial situation. Obtain information to assist in future collection, e.g. Bank(s), assignment of equipment and receivables, major creditors etc., attach additional working paper as necessary.]
12. Future
Compliance:
[Indicate information provided and specific actions suggested to the taxpayer to improve compliance. Where the taxpayer is in agreement with the suggestions, request a commitment in writing and include it in the audit report. If the taxpayer is unwilling to give a written undertaking, obtain a verbal commitment and note it down.]
13. PROCEDURAL
PARAS:
[DIFICULTY FACED IN AUDITING & SUGGESTION FOR
FURTHER IMPROVEMENTS]
AUDITORS –
|
SR |
NAME S/ Shri |
DESIGNATIONS |
SIGNATURES |
|
1. |
|
|
|
|
2. |
|
|
|
|
3. |
|
|
|
|
4. |
|
|
|
|
5. |
|
|
|
ANNEXURE-‘A’
RISK LOSS ANALYSIS
[SAMPLE RECONCILIATIONS]
A. RECONCILIATION OF TAX BASE AS SHOWN IN
RETURN WITH INCOME STATEMENT
1. TOTAL REVENUE FOR THE PERIOD PER
INCOME STAEMENT =A
2. DEDUCT REVENUE ITEMS NOT SUBJECT TO
SERVICE TAX
§
Sales
revenue= B
§
Non
taxable service= C
§
Misc.
Income= D
3. TAXABLE SERVICE REVENUE BASE = S = A
– (B - C -D)
4. ESTIMATED TAX @ 5% =T= S*0.05
5. DEDUCT: TAX REPORTED ON RETURN = t
6. VARIANCE AMOUNT OR POTENTIAL RISK =
V = T-t
7. VARIANCE PERCENTAGE ON TAXES PAYABLE
= V*100/T
8. RESPONSE / CONCLUSION -
B. RECONCILIATION OF SERVICE TAX PAID AS
PER RETURN WITH THAT SHOWN IN FINANCIAL ACCOUNT
Tax reported in Return i.e. " t " should invariably be first reconciled with the amount of tax paid in the financial accounts. For this purpose, the relevant account heads where service tax transactions are recorded should first be identified and then a reconciliation be first made between Service Tax paid as per Return vis a vis Service Tax paid as shown in financial accounts. Depending upon the accounting policy being followed, whether service tax collected from customers and service tax paid to the Government are accounted separately or combined, the auditor must fires ascertain the accounting system. If both the above accounts are clubbed then, a detailed extract of the combined account must be scrutinized and then tabulated so as to make meaningful comparison. If the two transactions are accounted for separately, then the two accounts should first be reconciled and then compared with the tax return.
C. Auditor should also look towards the Income vs Expenses incurred (including capital investment) , whether there is any possibility of suppressing the income liable for service tax. Auditor should also weigh the changes in the current charges for billing service (with the charges for billing service during audit period as per record). Any large variation in such charges without any reasonable basis is an indicator for suppression of income and therefore service tax.
Circular
No.35/3/2001-CX.4
27th
August, 2001
F.No.137/24/99-CX.4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Subject: Introduction of Service Tax Code (STC)
Number based on Permanent Account Number (PAN) allotted by the
In continuation of Board’s Circular No.493/59/99-CX (F.No.212/14/99-CX.6) dated 12.11.99 on the subject noted above, the following further instructions are given in the allotment of STC Number to Service Tax assessees:-
2. Components of the STC Number for Service Tax assessees
A background note on the subject has already been circulated as Annexure-I to above referred Circular dated 12.11.99 (copy enclosed as Annexure-I).
The STC number will be alphanumeric. The first part would be
the 10-Character PAN issued by Income-tax authorities to the Service Tax
assessees (hereinafter referred to as ‘concerned person’) to whom the STC
Number is to be allotted. The second part would comprise of a fixed 2-Character
alpha code (ST). This will be followed by numeric-code-001, 002, 003, etc.
Since all concerned persons requiring registration in terms of Rule 4 of
Service Tax Rules, 1994 (hereinafter referred to as the Rules) will be applying
for allotment of STC Number, a centralized allotment will be done at the level
of:
|
Service Tax Cell, Head quarter or Division as the case may be |
Where a concerned person has one premises or office or more than one premises or offices having centralized billing/accounting system and has been allowed centralized registration of only such premises or offices where such centralized billing/accounting is done in terms of sub-rule 2 of 3A of Rule 4 of the Rules. |
|
Commissionerate |
Where a concerned person has more than one premises or offices in respect of which registration has been obtained within the jurisdiction of the same Commissionerate. |
|
Directorate General of Service Tax, Mumbai (DGST) |
Where a concerned person has obtained registration for more than one premises or offices falling within the jurisdiction of different Commissionerates. |
3. The
STC Number will be PAN + alpha-code (ST) + numeric-code (001). If there are more
than one premises or offices registered of such a person having common PAN for
all such premises or offices, the last numeric code of STC Number would be
"001, 002, 003, ….., etc."
Examples:
(1) (a) Where the concerned person has one registered premise
or office:
STC Number will be-PAN + ST + 001
Suppose PAN is ABCDE1234H, the STC Number will be-
ABCDE1234H ST 2001
(b) Where the concerned person has more than one registered premises or offices having PAN as aforesaid.
STC Number will be:
ABCDE1234H ST 001
ABCDE1234H ST 002
ABCDE1234H
ST 003
4. Procedure
for allotment of STC:
1. Every concerned person shall be required to obtain a STC Number
2. They shall apply in the form (in duplicate) given in Annexure-II to this Circular along with a certified copy of PAN (letter/card issued by the Income-Tax Department), to the Superintendent of Central Excise of concerned Service Tax Cell (Headquarter/Division) and obtain a dated acknowledgment. An entry should be made in a register (serially numbered) indicating name of the concerned person, address, Service Tax Cell (Headquarter/Division), the existing Classification Code (if any), Registration Number, date of forwarding of application and STC Number (to be filled when allotted). The Entry Number (Receipt Number) should be endorsed on the Acknowledgement Slip.
3. A Special Counter will be opened in each of the Service Tax Cells (Headquarter/Division) for receipt of the application. The acknowledgement will be given immediately.
4. Where the application are complete in all respects and there is only one registered premises or office of the PAN-holder or more than one registered premises or offices within the jurisdiction of the Commissionerate (in those Commissionerates where registration is centralized). STC Number will be allotted within 3 working days and the letter will be issued by the Assistant/Deputy Commissioner of Service Tax Cell, Headquarter to the concerned person (applicant) in the format given in Annexure-III. One copy of the letter will be forwarded to the concerned Pay & Accounts Officer (PAO).
5. In those Commissionerates where registration is decentralized and there is only one registered premise or office of the PAN-holder or more than one registered premises or offices within the jurisdiction of the Division, STC Number will be allotted within 3 working days and the letter will be issued by the Assistant/Deputy Commissioner of the Division to the concerned persons (applicants) in the format given in Annexure-III. One copy of the letter will be forwarded to the PAO>
6. Where the registered premises or offices of the PAN-holder fall within the jurisdiction of different Divisions of the Commissionerate, all such applications will be forwarded to the Commissionerate Headquarters within 3 working days of the receipt of the application in the Divisional Office. The Service Tax Cell of the Commissionerate Headquarter will process the applications forwarded by the Divisions. Where all the registered premises or offices fall within the jurisdiction of the Commissionerate, the STC Number will be issued by the Commissionerate and intimated to the concerned persons (applicants) in the format given in Annexure-III. The copies of these letters will be forwarded to the concerned PAO and the Divisions.
7. Where the registered premises or offices of the PAN-holder fall within the jurisdiction of different Commissionerates, all such applications will be forwarded in DGST within 3 working days of the receipt of the application in the Commissionerate Headquarter. DGST will process the applications forwarded by the Commissionerates. The STC Number will be allotted by DGST and intimated in the concerned persons (applicants) in the format given in Annexure-III. The copies of these letters will be forwarded to the concerned PAO and the Commissionerates.
5. National Informatic Centre (NIC) is being asked to develop a suitable software as part of its "SERMON" package to capture the details of Annexure-II in the Systems and also generate Annexure-III letter electronically. Separate instructions will be issued in this regard. For the time being, the manual exercise of processing of applications received should commence immediately. Once this operation is automated/data entered in computers, the Directory of STC Number and its updates should be provided to the concerned PAO in electronic form (Floppies/Tapes/CDs), in addition to the individual intimations in the manner specified in Paragraph 4 of this circular.
6. A database should be created in each Commissionerate on the basis of these applications. It is proposed that more information relating to each assessee will be added in order to have comprehensive assessees profile and to facilitate cross-referencing.
7. In this regard, it is mentioned that it shall be compulsory for all concerned persons registered under the Rules to obtain PAN whether or not they pay Income Tax. The Income Tax Department is being requested to allot PAN on priority basis to all concerned persons.
8. It is further mentioned that the STC Number will be introduced w.e.f. 1.1.2002. However, the existing clarification Code (if any) will continue to be mentioned in all the Service Tax documents which specify/prescribe for mentioning of STC Number. However, from 1.7.2002, only the STC Number will be used.
9. In the said application, the Location Code is to be filled in by the Service Tax Cell Headquarter or Division, as the case may be. After re-organization of Commissionerates, the Directorate of Statistics & Intelligence has already allocated revised location two-digits-Code to Commissionerates and four-digits-code to Divisions.
10. The
process for allotment of the STC Number should be started immediately. It
should be taken up as a
11. Each Commissioner will report to the DGST by 01.12.2001 about completion of this work. DGST will send a report to the Board by 15.10.2001, which will also include the status of allotment of STC Number by the DGST.
12. The Principar Chief Controller of Accounts under Central Board of Excise & Customs will take immediate measures to develop suitable software for Service Tax revenue accounting in consultation with NIC.
13. Receipt of this Circular may please be acknowledged.
14. Hindi version will follow.
Annexure-I
Background
Note on Common Business Identifier for Importers/Exporters, Central Excise assessees,
Income-tax assessees, etc.
Presently, different agencies of the Government use separate numbers for identification of individuals and business in relation to the activities concerning the agencies. The Director General of Foreign Trade (DGFT) allocates Importer Exporter Code No. (IEC No.) for identifying importers and exporters, the Income Tax Department issues the Permanent Account Number (PAN) for all Income Tax, Wealth Tax assessees, the Central Excise Department is also registering the various manufacturers and allocating a separate series of registration numbers. The RBI separately used to allocate a CNX number for identification of the exporter.
The main objective of allocating an alphanumerical number by the Government agencies is to identify the assessees/exporters/importers. It is also used to identify in some cases the concerned office where the person would be assessed or registered. Further in alphanumeric number helps in processing of the information relation to the assessee on computers.
A Working Group comprising officers of the different Departments had examined the feasibility of adopting a Common identifier by the various agencies. It was observed that the assessee will be considered benefited if he has to obtain just one identification number for use by the various Government agencies. With the increasing import and export activity and universal extension of modvat, it has become necessary to develop linkage between the import transaction, the manufacturing activity and the export transactions. Besides, maintaining a complete profile of the person concerned, wherein the records of his conduct with any of the Government Department could be ascertained, such a linkage can help in verification of availment of modvat, excise rebate on exports etc. Such a measure would be particularly helpful in introducing selective risk based assessment of import/export transactions instead of verification of each and every shipping bill or bill of entry. A common identifier would immediately help obtain an overall assessment of the assessee’s credentials with different Government agencies. Various Government Departments particularly the DGFT, the Income tax and the Customs and Excise Department are presently engaged in computerization of their operations. There is need to share information from the computers of one of the Departments with the other Departments. This exchange of information will be made easier if there are common identification numbers.
It has been decided to adopt the Permanent Account Number issued by the Income Tax Department as the basis for the Common Identifier. PAN is a 10-digits alphanumeric code and can idenfity upto 96 crores business entities. Apart from being unique (PAN is issued centrally and is generated by the computer system), it has the widest application (more than 2 crores assessees as against about 3 lakhs importers exporters using IE Codes and about 1.2 lakhs Central Excise assessees using STC Number). Further, since it is not dependent on the location of the office of registration, it will not get modified on account of re-organization of jurisdiction of the concerned Department/Offices.
As per the decision of the Government, PAN will be the only identifier for cross-referencing with the other Departments though each Department is free to use any internal codes which it may consider necessary.
Annexure-II
(In Duplicate)
(To be filled in the Service Tax Cell)
FORMAT FOR APPLICATION FOR OBTAINING SERVICE TAX CODE NUMBER
To
The Deputy/Assistant Commissioner,
(Address of the Service Tax Cell).
Subject: Allotment of Service Tax Code Number-regarding.
Sir,
I/We may kindly be allotted Service Tax Code Number (STC Number) for which the details are as under:-
FORMAT FOR THE DETAILS (All entries shall be in BLOCK letters)
1. Name of the Applicant (s) ________________________________________
2. Permanent Account Number ______________________________________
(Issued by Income Tax Department) (Attested copy to be enclosed)
3. Applicant’s Premises or Offices registered under Rule 4 of Service Tax Rules, 1994.
Existing Classification Code, if any :
Registration Number :
Address :
Telephone Nos. :
Fax Nos. :
E-mail address :
Division ___________ Commissionerate ____________ Location Code (To be filled by the Service Tax Cell (Headquarter/Division)_____________________
4. OTHER* Premises or Offices
*[Each of these Premises or Offices have to apply individually in their own jurisdiction unless covered under sub-rules 2 or 3A of Rule 4 of Service Tax Rules]
|
Sl. No. |
Name and address |
Service being provided |
Registration No. |
Tel. No (s). |
|
1 |
2 |
3 |
4 |
5 |
|
|
|
|
|
|
|
Fax No. |
E-Mail No. |
Division |
Commissionerate |
|
6 |
7 |
8 |
9 |
|
|
|
|
|
[Please furnish the aforesaid information for each of the other registered premises or offices]
I/We hereby certify that the information given in this form is true, correct and complete in every respect and that I am authorized to sign on behalf of the applicant.
(Signature of the authorized person)
Date:
Place:
NOTE:
1. Use separate application form for each registered premises or offices, for allotment of STC Number.
2. Location Code is to be filled by the Service Tax Cell, Headquarter or Division, based on the new codes allotted by the Directorate of S&I.
3. Telephone numbers/Fax Numbers/E-mail address are to be filled if available.
Acknowledgement
Subject: Allotment
of Service Tax Code Number-regarding.
Your application for allotment of STC Number received on ________ is hereby acknowledged. The Receipt Number is ____________ dated _________.
(Signature of the Inspector)
with Official Seal
Annexure-III
Address
of the Central Excise Office
To
(Name and address of the Applicant)
Subject: Allotment of Service Tax Code Number-Application Receipt No.______ dated__________
Sir/Madam,
1. In place of your existing Classification Code ______________ the STC number is ___________________.
OR
Your STC Number is _____________________________.(For new applicants)
2. The Location Code concerning your registered premises or offices is ______________________________.
3. You are advised to deposit Service Tax and other related Government dues in any of the authorized branches of the nominated banks, i.e., ____________.
4. You are requested to use the STC Number Code along with the existing Classification Code (if any) with effect from 01.07.2000 till 31.12.2000 on the requisite documents/records. The STC Number shall be exclusively used with effect from 01.01.2001.
Signature of the
Deputy/Assistant Commissioner of Central Excise
Or Deputy/Assistant Director, DGST
With official seal
Date:
Place:
20th August,2001.
F.No.V/DGST/30-Misc-33/2001
Directorate of
Service Tax
9th Floor :
Jijibhoy Lane
Mumbai – 400 012.
{Tel: 4102584/86/89 Fax: 417 8515 }
Sub : Service Tax on 15 new services, opening of new Heads of Accounts.
I am directed to say that with the imposition of Service Tax on 15 new services with effect from 16.07.2001, heads of accounts for collection/ receipts/ refunds in relation to the following 15 services have been introduced by the Principal Chief Controller of Accounts, C.B.E.C.. The same are listed herein below as Annexure - I. The Serial Codes and SCCD codes allotted have been mentioned against each new Heads of Accounts.
I am directed to request you to issue suitable trade notices immediately to facilitate unhindered payments of Service Tax by the new assessees.
Sansar Chand
Joint Director : Service Tax
Mumbai
Annexure
– I
Head of Account for Service Tax on New
Services under Major Head 0044
|
Head of Account |
Description |
Serial Code |
SCCD Code No. |
|
004400131 00440013101 00440013102 00440013103 |
Minor head – Scientific & Technical consultancy Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440124 00440125 00440126 00440127 |
116 113 118 |
|
004400132 00440013201 00440013202 00440013203 |
Minor head – Photography Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440128 00440129 00440130 00440131 |
110 118 113 |
|
004400133 00440013301 00440013302 00440013303 |
Minor head – Convention Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440132 00440133 00440134 00440135 |
115 114 117 |
|
004400134 00440013401 00440013402 00440013403 |
Minor head –Leased circuits Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440136 00440137 00440138 00440139 |
119 110 111 |
|
004400135 00440013501 00440013502 00440013503 |
Minor head – Telegraph Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440140 00440141 00440142 00440143 |
110 119 112 |
|
004400136 00440013601 00440013602 00440013603 |
Minor head – Telex Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440144 00440145 00440146 00440147 |
114 115 116 |
|
004400137 00440013701 00440013702 00440013703 |
Minor head – Facsimile Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440148 00440149 00440150 00440151 |
118 110 111 |
|
004400138 00440013801 00440013802 00440013803 |
Minor head – Online information & database access and/or retrieval Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440152 00440153 00440154 00440155 |
113 116 115 |
|
004400139 00440013901 00440013902 00440013903 |
Minor head – Video tape production Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440156 00440157 00440158 00440159 |
117 112 119 |
|
004400140 00440014001 00440014002 00440014003 |
Minor head – Sound recording Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440160 00440161 00440162 00440163 |
118 111 110 |
|
004400141 00440014101 00440014102 00440014103 |
Minor head – Broadcasting Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440164 00440165 00440166 00440167 |
112 117 114 |
|
004400141 00440014101 00440014102 00440014103 |
Minor head – Broadcasting Service. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440164 00440165 00440166 00440167 |
112 117 114 |
|
004400142 00440014201 00440014202 00440014203 |
Minor head –Insurance auxiliary Services. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440168 00440169 00440170 00440171 |
116 112 119 |
|
004400143 00440014301 00440014302 00440014303 |
Minor head –Banking and other financial Services. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440172 00440173 00440174 00440175 |
111 118 113 |
|
004400144 00440014401 00440014402 00440014403 |
Minor head –Port Services. Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440176 00440177 00440178 00440179 |
115 114 117 |
|
004400145
00440014502 00440014503 |
Minor head –Services or repair provided by authorized service station for motorcar and two wheeled motor vehicle Sub Head – Tax collections Sub Head – other receipts Sub Head – Deduct refunds |
00440180
00440182 00440183 |
113 118 |
Government of
Ministry of Finance
Department of Revenue
9th July, 2001
Subject: Tax on 15 New Services to be effective from 16.7.2001- Instructions regarding.
Kindly refer to section 137 of the Finance Act, 2001 (14 of 2001) which, inter-alia, provides for the levy of service tax on 15 new services.
2. It
has been decided that the levy and collection of service tax on the newly
introduced shall be effective from the 16.7.2001. (Vide notification No.
4/2001-ST, dated 9.7.2001)
3. As
you are aware, certain legislative amendments were made in sections 67, 69 to
74, 75, 77, 79, 82, 84 to 86 of the Finance Act, 1994 vide section 137
of the Finance Act, 2001. All these changes will be effective from 16.7.2001.
The Service Tax Rules, 1994 have also been amended. Notification No. 5/2001-ST
dated the 9th July, 2001 has been issued in this regard. These amendments are
also effective from the 16.7.2001.
4. Legislative
changes:
4.1 The most significant legislative change made in the service tax provisions relates to the introduction of self-assessment procedure vide amendment of section 70 of the Finance Act 1994. Section 71 has also been amended to provide for verification by the Superintendent for correctness of the tax assessed by the assessee on self-assessment basis. Where service tax on any services provided has escaped assessment or has been under assessed, the Assistant Commissioner / Deputy Commissioner of Central Excise (AC/DC) is required to pass an order of assessment. In view of the amended provisions, the Superintendent of Central Excise is not required to pass any order of assessment. He should only refer the matter to AC/DC concerned along with his observation and report.
4.2 Section 67 of the Finance Act, 1994 has been amended to provide for a comprehensive definition of value of taxable service instead of separate definitions for each of the services. However, there is no change in the definitions relating to existing taxable services. Accordingly clarifications/circulars issued in this regard in the past will continue to hold good.
4.3 Section 69 has been amended to specify that application for registration shall be made to the "Superintendent of Central Excise".
4.4 Section 73 has been amended to provide for recovery of service tax in the case of erroneous refunds. Further, the power to initiate action for recovery of service tax has been specifically vested with the Assistant Commissioner / Deputy Commissioner of Central Excise. As such only the designated officer is to exercise the power under section 73.
4.5 Section 75 has been amended to provide for charging of interest at the rate of twenty four percent per annum (instead of the rate of one and half percent per month) for delayed payment of service tax.
4.6 A new section 75A has been inserted to provide for a fixed (non discretionary) amount of penalty of five hundred rupees for failure to apply for registration.
4.7 Section 77 has been amended to provide for a penalty not exceeding rupees one thousand for the failure to file the service tax return within the due date.
4.8 It
may be noted that sections 69 to 74, 78, 79, 82, 84, 85 and 86 have also been
amended specifying the authority (by designation) empowered to take action
under these sections. As such powers under these section
may be exercised only by the designated authority.
5. Amendments
to Service Tax Rules, 1994
1. Consequential
amendments in Service Tax Rules, 1994, have been made in view of introduction
of self-assessment procedure and amendment in various sections of Chapter V of
the Finance Act, 1994 to provide for specific reference to the designation of
the authority empowered to take action. Notification No. 5/2001-ST refers.
2. In
relation to "insurance auxiliary services" provided by the insurance
agents, it has been prescribed that the service tax shall be paid by the Insurance
Company (Insurer). Notification No. 5/2001-ST refers.
6.
Amendment in Form ST-1:
A new column has been inserted in ST-1 form for furnishing
PAN number by the assesse. Wherever
PAN number has not been allotted or not applied for, same may be indicated in
the ST-1 form. Notification No.
5/2001- ST refers.
7.
Extension of service tax to fifteen more services:
In regard to the new services, which will be subject to
service tax from 16th July, 2001, certain issues have been brought to notice
during the course of discussion with the concerned Association. These have been
discussed and clarified in the Annexures appended as per details below.
|
(i) |
Scientific and technical consultancy service |
|
|
(ii) |
Photography service |
|
|
(iii) |
Convention service |
|
|
(iv) |
On-line information and database access and/or retrieval |
|
|
(v) |
Broadcasting service |
|
|
(vi) |
Insurance auxiliary services |
|
|
(vii) |
Banking and other financial services |
|
|
(viii) |
Port services |
|
|
(ix) |
Authorised service station for service or repair of
motorcar and two wheeled motor vehicle |
|
|
(x) |
Video tape production service |
|
|
(xi) |
Sound recording service |
|
|
(xii) |
Telegraph services |
|
|
(xiii) |
Telex service |
|
|
(xiv) |
Facsimile service |
|
|
(xv) |
Leased circuits |
The section or clause nos. referred to hereinafter are the
sections or clauses of the Finance Act, 1994 as amended by the Finance Act,
2001.
8. The
Commissioners are requested to issue suitable trade notices for the benefit of the
new assesses detailing the scope and coverage of the new services, gist of the
service tax procedures and formalities to be complied with by the assessees,
formats of the application for registration, service tax returns, etc., the
manner of payment of service tax, the banks through which service tax payments
can be made and other relevant aspects.
8.
In
case of any doubts or difficulties arising in the implementation of service tax
on the new services, which require clarification at the Board’s level, the
Commissioners are requested to bring the same to the notice of the undersigned
immediately along with their suggestions/views for resolving these
difficulties.
(T.R.Rustagi)
Joint Secretary (TRU)
Telephone: 301 2687
Annexure
I
Scientific
and technical consultancy service
1. Section 65(60) defines "scientific and technical consultancy" as any advice, consultancy, or scientific or technical assistance, rendered in any manner, by a scientist or a technocrat, or any science or technology institution or organisation, to a client, in one or more discipline of science or technology. The taxable service has been defined in clause 72 (za) of section 65 as "any service provided, to a client, by a scientist or a technocrat, or any science and technology institution or organisation, in relation to scientific or technical consultancy".
2. The taxable service should be understood in the context of its commonly understood meaning and scope. For instance, it would cover consultation, advice or technical assistance provided by a scientist or a technocrat or a science or technology institution on any issue relating to any branch of science and technology. Such consultation may be in the nature of an expert opinion/advice in regard to scientific or technical feasibility or any other scientific or technical aspect of a project, process or design, recommending an apt technology, suggestion for improvement in existing technology or process, providing consultation on any technical problem or about new technology, etc. Some of the specific issues raised and clarifications thereon are given below.
3. Points
for clarification:
|
Point raised for clarification |
Clarification |
|
Whether services rendered by doctors, medical colleges, nursing homes, hospitals, diagnostic and pathological labs, etc. would come under the purview of the proposed levy. |
In common parlance, these categories of service providers are not known as scientists or technocrats or science or technology institutions or organisations. They will not be covered under service tax. |
|
Whether public funded research
institutions like CSIR, ICAR, DRDO, IITs and IISc., |
Yes. Service tax is liable to be paid when any scientific or technical consultancy service is rendered whether by public funded institutions or by private agencies. |
|
Whether testing services will be covered under the proposed levy? |
Mere testing will not attract service tax. However, in case testing is an integral part of the consultancy, then such activity is part and parcel of the taxable service and no abatement of any kind admissible. |
|
Many public funded research institutions receive grants or aids from the Government for conducting research /project work. Whether such activities would be covered under the levy? |
In the facts of this case, no service is rendered to any one. Hence the question of payment of service tax does not arise. However, if they render service to anyone on payment basis, service tax will be payable on such services. |
|
Whether the service tax will be leviable on consultancy provided to government departments, public sector undertakings? |
If scientific or technical consultancy is provided to a government department for which consultation fees are received, then service tax would be applicable. |
Annexure
II
Photography
service:
1. As
per section 65(47), the term "photography" includes still
photography, motion picture photography, laser photography, aerial photography and
fluorescent photography. The taxable service, as per section 65(72)(zb), is any service provided, to a customer, by a
photography studio or agency in relation to photography, in any manner.
Photography studio or agency has been defined as "any professional
photographer or a commercial concern engaged in the business
of rendering service relating to photography" vide section 65(48).
2. The
services which will come within the purview of service tax are still
photography such as photographing persons or other subjects in studios or other
locations, passport or identification photographs, fashion photos; industrial
photographs of machine and buildings etc; photographic service for advertising
display, brochures, news paper advertisement, catalogues; photography of any
live event such as weddings, receptions, conventions, fashion shows, sports and
news events (excluding news agency services, that is, press photographers are
excluded); aerial photography such as photographs of landscape, structures and
other surfaces from aircraft or helicopters with the help of cameras mounted on
such aircraft or helicopter; laser photography to create holograms; motion
picture photography, also known as cinematography to make films, which involves
the general composition of a scene; the lighting of the set or location; the
choice of cameras, lenses, filters, and film stock; the camera angle and
movements; and the integration of any special effects; fluorescence photography
using ultraviolet rays to irradiate a surface or substance to identify dyes,
stains, and markings, specific chemical substances, and fluorescent components
in microscope specimens; and any other kind of special photography service.
Also covered are the photography services such as
restoration of old photographs, processing and developing of photographic films
and printing of photographs etc.
3. The
photography services are rendered by still photography studios, still film
processing laboratories, cinematographic studios/labs who undertake motion picture
photography and processing of cine films, holography studios (laser
photography) who make holograms, aerial photographers,
industrial photographers, etc.
4. The
value of taxable service is the gross amount charged from the customer for the
service rendered. However, the cost of unexposed photography films sold to the
customer is excluded. The service provider claiming benefit of the cost of film
should be advised to show them clearly on the invoices along with description
and particulars of the film. Otherwise, the claim will not be considered as
admissible. No other cost (such as photographic paper, chemicals, etc.) is
excluded from the taxable value.
5. In
regard to still photography, notification No. 6/2001-ST dated the 9th July,
2001, has been issued. Accordingly, service providers who are registered under
various States/Municipal laws relating to Shops and Establishments or any other
law of state which is in force for the time being, for carrying out commercial
activity only are liable to service tax. Individual professional photographers
and others providing still photography service, but who do not have fixed place
of business as a shop or office and who are not registered under these
enactments, will not be liable to pay service tax. In essence, service tax is
payable by shops and studios, processing and developing labs, etc. and not by
the individual photographers.
6. Point for clarification:
A point has been raised as to whether the x-ray or the CT
scan done using fluorescence photography technique will fall in the category of
taxable service. It is clarified that these are not photography studios or
agencies in common parlance; so the service provided by them does not come
within the ambit of tax.
Annexure III
Convention services:
1. As per section 65(19), "convention" has been defined to mean a formal meeting or assembly which is not open to the general public, and does not include a meeting or assembly the principal purpose of which is to provide any type of amusement, entertainment or recreation. As per section 65(72)(zc), the taxable service is any service provided, to a customer, by a commercial concern in relation to holding of a convention.
2. Any service provided for holding a conference, seminar, meetings etc by a commercial concern will come under the tax net. The service could be in the nature of providing of room/ hall for the convention. The services could also include providing other facilities such as video conferencing, equipment such as over head projectors, video-roma (LCD projector), speakers, microphones, technical staff for operating these equipments and stationery, etc apart from providing space for holding a convention. The charges for such facilities shall also be included in the value of taxable service. In some cases it may appear that it is same as the service rendered by a "mandap keeper". Apart from the fact that there is a subtle distinction between the type of events (official, social or business function in the case of mandap keeper as opposed to formal meeting in the case of convention services) it is clarified that the intention is not to charge the service tax twice on the same service. If a service provider is already registered as a mandap keeper and paying service tax, he is not liable to pay service tax again under the category of convention services. Similarly, a convention service is not liable to tax as mandap keeper service also.
3. A doubt has been raised whether holding of conventions by Chambers of Commerce and Industry for their members would be liable to service tax. In this regard, it is clarified that service tax, in the case of convention services, is applicable only when the service is provided by a commercial concern. If the Chamber of Commerce and Industry is not a commercial concern, then the tax does not apply. The memorandum and articles of association of a Chamber of Commerce & Industry would indicate whether it is a commercial concern or not. It is informed by the Chambers that generally they are not commercial concerns.
Annexure IV
On-line information and database access and/or
retrieval:
1. As per section 65(19), 1994, the term "On-line information and data base access or retrieval" means providing data or information, retrievable or otherwise, to a customer in electronic form through a computer network. The words "Data", "information", "electronic form" and "computer network" have the same meanings assigned to them in the Information Technology Act, 2000. As per section 65(72)(zh), taxable service means any service provided to a customer, by a commercial concern, in relation to on-line information and database access or retrieval or both in electronic form.
2. The definitions given in the Information Technology Act, 2000 are as follows:-
"Data" means a
representation of information, knowledge, facts, concepts or instructions which
are being prepared or have been prepared in a formalised manner, and is
intended to be processed, is being processed or has been processed in a
computer system or computer network, and may be in any form (including computer
printouts, magnetic or optical storage media, punched cards, punched tapes) or
stored internally in the memory of a computer.
"Information" includes data, text, images, sound voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche.
"Electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical computer memory, microfilm, computer generated microfiche or similar device.
"Computer
network" means the interconnection of one or more computers through-
i. the
use of satellite, microwave, terrestrial line or other communication media; and
ii. terminals or a
complex consisting of two or more interconnected computers whether or nor the
interconnection is continuously maintained.
3. In the context of this service, it may be relevant to point out the manner in which on-line information and database access/retrieval is generally made available. First, the function of what is commonly known as Internet Service Providers (ISPs). The ISPs provide telecommunication network or gateways necessary to access messages and databases and other information holdings of content providers. The second element is on-line information provision services which includes database services, provision of information on web-sites, provision of on-line data retrieval services from data bases and other information, to all or limited number of users and provision of on-line information by content providers.
4. Internet
service providers (ISPs) provide access to the web-sites through the computer
network and the web-sites. Web-sites, in turn, provide the database or
information. Some of the well-known ISPs operating in
5. As regards paid web-sites, a few examples of Indian dot companies are, Indiainformer.com, CIIonline.com, who charge the customer for certain specific information contained in their website either in advance or credit basis. They shall be also liable to pay service tax on the paid services provided by them. It is obvious that where the information is supplied free of charge, no service tax is payable.
6. Point for clarification:
A question has been raised as to whether e-commerce transactions (other than providing online information and data) are covered in the ambit of service tax. It is clarified that in e-commerce transactions, no service of online information and database access/retrieval is involved. Therefore, e-commerce transactions will not ordinarily be covered under the service tax net. Normally, the web sites do not charge the surfers for information on sale of goods or services offered by them. If at all they do, service tax will be payable on the amount charged for providing the information.
Another point raised relates to applicability of service tax on inter-connectivity services provided by one ISP to another and the charges recovered for such services. It is understood that this is done to inter connect various networks so as to reach the server where the information is stored. It is informed that interconnection of one ISP to another is a commercial and technical arrangement under which service providers connect their equipment, networks and services to enable their customers to have access to the data or information. Through this arrangement, it is the customer of an ISP who ultimately receives on-line information and database access and/or retrieval service. Service tax on the amount charged from him is payable. Therefore, interconnection charges paid by one ISP to another ISP are not liable to service tax.
A question has also been raised whether the cyber cafés will be subject to service tax. It is clarified that the cyber cafés provide only the infrastructure such as computer terminals and internet connection. It is the ISP or web-sites who provide on-line access or retrieval of information, Therefore, cyber cafés are not liable to pay service tax. Services provided by ISP to cyber café are taxable and the ISP will pay the tax on charges realised from the cyber café.
Annexure
V
Broadcasting
service :
1. As per section 65(13), 1994, "broadcasting" has been defined to have the meaning assigned to it in clause (c) of section 2 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990. As per this definition "broadcasting" means the dissemination of any form of communication like sign, signals, writing, pictures, images and sound of all kind 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 and all is grammatical variations and cognate expressions shall be construed accordingly. The taxable service is any service provided to a client, by a broadcasting agency or organisation in relation to broadcasting, in any manner.
2. The
service covers both radio broadcasting and television broadcasting. While
radio broadcasting is done by the All India Radio or any private radio channel,
television broadcasting is done by Doordarshan, Indian TV Channels and Foreign
TV channels. The broadcasting may be of advertisements,
serials/programmes or live events. The client is the person who wants an
advertisement to be broadcast or the sponsor of a serial or programme or event
who wants the serial or programme or event to be broadcast. The service provider, that is, broadcasting agency or organisation is
the AIR, Doordarshan, other Indian TV Channels and foreign TV channels who
broadcast the programme in
3. Broadcasting
is done either terrestrially or through satellite links. Most of the private TV
channels are using satellite links for broadcasting their programmes. The
uplinking of the programme to the satellite is done through VSNL or other earth
stations located in
4. Broadcasting service is provided by selling time slots. In the case of advertisements, service charges are recovered advertisement. In the case of serials/programmes/ events, service charges are made on the basis of factors such as duration, time slot, etc. However, some free commercial time is provided to the sponsor, which he can sell the same to others. In the case of broadcasting service, the advertisement charges or the sponsorship charges received by the braodcasting agency or organisation are the consideration for the services rendered and service tax is payable on these charges.
5. In
case of foreign satellite TV channels, their head office may be located outside
6. In the case of AIR and Doordarshan, the billing for the service rendered is done by the Regional Stations of AIR or Regional Doordarshan Kendras. These Regional Offices will have to be, therefore, registered for payment of service tax and for complying with other procedural formalities.
7. A doubt has been raised whether Prasar Bharati (AIR and Doordarshan) is liable to pay service tax since under section 22 of the Prashar Bharati Act 1990, they are exempt from any income tax or any other tax in respect of any income, profit or gains, accruing or arising out of the Fund of the corporation or any amount received by them. In this regard, it is clarified that the said section 22 applies only in respect of taxes on income or profit or gains. The exemption is only in respect of direct tax and not in respect of indirect tax. As such the argument that AIR or Doordarshan are not liable to pay service tax is not correct.
Annexure
VI
Insurance
auxiliary service:
1. As per section 65(31), "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 and includes risk assessment, claim settlement, survey and loss assessment. As per section 65(72)(zl), the taxable service is any service provided to a policy holder or insurer by an actuary or intermediary or insurance intermediary or insurance agent, in relation to insurance auxiliary service.
2. Services covered in this category are the services provided by the insurance agents to the insurance company in relation to marketing of insurance policies. They also provide service to the policy holder by providing information/advice on the types of insurance policies, processing of documentation, remitting of insurance premium, etc. Actuarial services are provided by the actuaries to the insurance companies. They cover diverse fields such as calculating insurance risks and premia, insurance claims adjustment services such as services of investigating claims, determining the amount of loss or damages covered by the insurance policies and negotiating settlements, services of examining claims which have been investigated and authorisation of payments and damage assessment services, administration of insurance including salvage administration and insurance consultancy services. It may be emphasized that only such services are taxable which are in relation to general insurance business such as motor vehicle insurance, insurance of buildings and other properties, marine insurance, fire insurance and other miscellaneous insurance. Services provided in relation to life insurance are not taxable.
3. The service providers are insurance agents, insurance surveyors and loss adjusters, actuaries and insurance consultants. In the case of insurance surveyors and loss adjusters, actuaries and insurance consultants, the service is provided mainly to the insurance companies (insurer) while in the case of insurance agents, the service is provided to both the insurer and the policy holder. Service tax is liable to be paid by the insurance auxiliary service provider except in case of insurance agents. Insurance agents normally do not charge the policy holder. However, the insurance company pays the agent a commission (usually as a percentage of the insurance premium) on a periodic basis. In the case of an insurance agent, it has been provided in the Service Tax Rules that the person liable to pay service tax will be the concerned insurance company who has appointed the agent. Notification no. 5/2001-ST refers.
4. The service tax is applicable to services provided on or after16th July 2001 and any payment made for the services provided prior to this date will not liable to tax even though payment is made on or after the 16th July 2001.
5. A point has been raised that the service provider, namely, an actuary, an intermediary or insurance intermediary or an insurance agent is reimbursed certain out of pocket expenses such as travelling expenses, boarding and lodging charges on actual basis. These expenses are reimbursed in addition to the prescribed fee. Whether such reimbursements will be included in the taxable value? In this regard it is clarified that the amount billed to the client on account of out of pocket expenses which are reimbursable on actual basis, such as travelling, boarding and lodging expenses, the same are not subject to service tax. In this respect, the assessee may be required to provide documentary evidence substantiating his claim.
6. Another point raised is to whether in cases where the bills raised by the service provider are revised, the service tax is payable on the billed amount or on the actual amount received. In this regard it is clarified that Rule 6 of the Service Tax Rules, 1994, provides for payment of service tax only on the amount received and not on the amount raised for the services provided. As such service tax is payable on the amount actually received.
Annexure
VII
Banking
and other financial services;
1. As per section 65(10) of the Finance Act, 1994, "banking and financial services" means the following services provided by a banking company or a financial institution including a non banking financial company, 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) broking;
(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 acquisition and advice on corporate
restructuring and strategy; and
(vii) provision and transfer of information and data processing.
1.1 The taxable service, as per section 65(72)(zm) means any service provided, 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.
1.2 The definitions of ‘banking’, ‘banking company’, ‘financial institution’ and ‘nob-banking financial company’ as per the Banking Regulation Act, 1949 and Reserve Bank of India Act, 1934 are given below:-
" banking" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise.
"banking
company" means any company which transacts the business of banking in
"financial institution" means any non-banking institution which carries on as its business or part of its business any of the following activities, namely-
(i) the financing, whether by way of making loans or advances or otherwise, of any activity other than its own:
(ii) the acquisition of shares, stock, bonds, debentures or securities issued by a government or local authority or other marketable securities of like nature:
(iii) letting or delivering of any goods to a hirer under a hire-purchase agreement as defined in clause (c) of section 2 of the Hire Purchase Act. 1972 (26 of 1972):
(iv) the carrying of any class of insurance business:
(v) managing, conducting or supervising, as foreman, agent or in any other capacity, of chits or kuries as defined in any law which is for the time being in force in any State, or any business, which is similar thereto;
(vi) collecting,
for any purpose or under any scheme or arrangement by whatever name called,
monies in lumpsump or otherwise, by way of subscription or by sale of units, or
other instruments or in any other manner and awarding prizes or gifts whether
in cash or kind, or disbursing monies in any other way, to persons from whom
monies are collected or to any other person, but does not include any
institution, which carries on as its principal business-
a. agricultural
operations; or
(aa) industrial activity; or
b. purchase
or sale of any goods (other than securities) or providing of any service, or
c. the
purchase, construction or sale of immovable property, so, however, that no
portion of the income of the institution is derived from the financing of
purchases, construction or sales of immovable property by other persons.
"non-banking
financial company " means-
i. a
financial institution which is a company;
ii. a
non banking institution which is a company and which has as its principal business
the receiving of deposits, under any scheme or arrangement or in any other
manner, or lending in any manner;
iii.
such other non-banking institution or class of such institutions, as the
Bank may, with the previous approval of the Central Government and by
notification in the Official Gazette, specify.
2. Financial services
covered under the tax net are specifically mentioned in the definition itself.
2.1 Financial leasing including equipment leasing and hire purchase:
2.1.1 In case of financial leasing including equipment leasing and hire-purchase, the service is taxable only if it is rendered by a body corporate. The term ‘body corporate’ has the meaning assigned to it in clause (7) of section 2 of the Companies Act, 1956. Briefly, body corporate means a private limited, public limited company or a Government company. Such companies should be either a banking company or a financial institution or non-banking financial company to come under the tax net. In other words individuals, proprietorship or partnership firms will not come under the tax net. The leasing or hire-purchase may be of motor vehicles, machinery and equipment or other goods.
2.1.2 In the case of leasing or hire purchase, it is understood that the general business practice is as follows: The service provider enters into a leasing or hire-purchase agreement with the lessee or hire-purchaser. At the time of entering into the agreement, they collect a charge called lease management fee or processing fee or documentation charges or by any other name, which is usually a percentage of the transaction value. The lease rental or hire purchase amount is recovered in equated monthly instalments (EMI) over the period of lease or hire-purchase as indicated in the agreement through post dated cheques and no separate bills are raised for the monthly recovery. Every agreement bears a unique number.
2.1.3 The EMIs consist of recovery of principal amount (towards the original cost of the equipment) and finance /interest charges. The allocation between the principal and the finance/interest charges are known to and agreed upon by both the parties. The customer repayment schedule contains the details of the EMIs with the break up for the principal and the interest. In respect of leasing and hire-purchase, the amount recovered as principal is not the consideration for services rendered but is credited to the capital account of the lessor/hire purchase service provider. The interest/finance charges is the revenue or income and is credited to the revenue account. Such interest or finance charges together with the lease management fee/ processing fee/documentation charges is the consideration for the services rendered and, therefore, they constitute the value of taxable service and service tax is payable on this value. Accordingly it is clarified that service tax in the case of financial leasing including equipment leasing and hire purchase will be leviable only on the lease management fee/processing fee/documentation charges (recovered at the time of entering into the agreement) and on the finance/interest charges (recovered in equated monthly installments) and not on the principal amount.
2.1.4 A question has been raised whether lease or hire-purchase agreements entered into prior to the imposition of levy (prior to 16-7-2001) would be leviable to service tax. In this regard, it is clarified that such agreements entered into prior to 16-7-2001 will not be liable to service tax, provided the property/goods has also been received by the lessee prior to 16.7.2001.
2.2 Credit card services
2.2.1 This is a service where the customer is provided with credit facility for purchase of goods and services in shops, restaurants, hotels, railway bookings, petrol pumps, utility bill payments, etc. Cash advances are also permitted upto specified limits in most of the cases. This service is provided by nationalised banks, multi-national banks and private banks.
2.2.2 For rendering the service, the service provider collects joining fee, additional card fee, annual fee, replacement card fee, cash advance fee, charge slip/statement retrieval fee, surcharge/service charges on railway fare, fuel charges, and utility bill payments, charges on over limit accounts and late payment fee, interest on delayed payment, interest on revolving credit, etc. The fees may vary based on the type of card and from bank to bank. All these charges, including interest charges are made for the services rendered. Hence they all form part of the value of the taxable service in this case.
2.2.3 The service tax is leviable only in respect of transactions which are done using a credit card on or after 16th of July 2001. Any amount paid by a customer to credit card service provider in respect of transaction done prior to 16th July, 2001 is not liable to service tax even though such amount is paid on or after the 16th July, 2001.
2.3 Merchant banking services
Banks and Financial institutions including NBFCs providing merchant banking services are governed by the SEBI (Merchant Bankers) Rules, 1992 and SEBI (Merchant Bankers) Regulations, 1992. As per these rules and regulations, merchant banking service is any service provided in relation to issue management either by making arrangements regarding selling, buying or subscribing securities as manager, consultant, advisor or rendering corporate advisory service in relation to such issue management. This, inter-alia, consists of preparation of prospectus and other information relating to the issue, determining financial structure, tie up of financiers and final allotment and refund of the subscription for debt/ equity issue management and acting as advisor, consultant, co-manager, underwriter and portfolio manager. In addition, merchant banking services also include advisory services on corporate restructuring, debt or equity restructuring, loan restructuring, etc. The fee charged by the merchant banker for rendering these services will be the taxable value in respect of this service.
2.4 Asset management including portfolio management and all forms of fund management, pension fund management, custodial depository and trust services.
2.4.1 Asset management and portfolio managers are also governed by the SEBI (Portfolio Managers) Rules, 1993 and SEBI (Portfolio Managers) Regulations, 1993. As per these rules and regulations, the "portfolio manager" means any person who pursuant to a contract or arrangement with a client, advises or directs or undertakes on behalf of the client (whether as discretionary manager or otherwise) the management or the administration of portfolio of securities or the funds of the client, as the case may be. They enter in agreement with the client and charge an agreed fee for providing the service. The tax will be leviable on the fee charged for providing these services. Similiarly in the case of other types of fund management such as pension fund management, service tax will be leviable on the fee charged for providing the service.
2.4.2 With respect to mutual funds, a question has been raised whether the asset management company is liable to pay service tax as it may not fall in the category of NBFC. It is clarified that such asset management companies are not NBFC. Hence they will not come under the purview of service tax.
2.4.3 Custodial depository services means safe keeping of securities of a client and providing services incidental thereto, and includes-
a. maintaining
accounts of securities of a client;
b. collecting
the benefit of rights accruing to the client in respect of the securities;
c. keeping
the client informed of the action taken or to be taken by the issuer of
securities, having a bearing on the benefits or rights accruing to the client;
and
d. maintaining
& reconciling records of the services referred to in sub-clause (a) to (c).
Taxable value is the fee charged for providing custodial services. However, service tax will not be leviable on NSDL or CSDL fees paid to the depositories and recovered from the customers on actuals basis.
2.5 Other auxiliary financial services
2.5.1 Some examples of other auxiliary financial services are investment and portfolio research and advice, advice given on mergers and acquisition, advice on corporate restructuring and strategy, market analysis and intelligence.
2.6 In the case of banks and financial institutions including NBFCs, while some services may be done in a centralised way (that is centralised billing and accounting) either at the head office or regional office, in respect of other services such as financial leasing including equipment leasing, specified branches may be providing the service with separate billing and accounting. In respect of a taxable service, where the billing and accounting is centralised in an office of the bank, only such office needs to be registered and made liable to pay service tax in respect of such service. Where the billing and accounting is not centralised and is undertaken by different branches of a bank or a financial institution including NBFCs, each such branch office will have to be registered and made responsible for payment of service tax and compliance with other procedural formalities.
Annexure
VIII
Port
services:
1. As per the section 65(51), the "port services" means any service rendered by a port or any person authorized by the port, in any manner, in relation to a vessel or goods. As per section 65 (72)(zn), taxable service is any service provided to any person by a port or any person authorized by the port, in relation to port services, in any manner.
2. Port services generally consist of port and dock services (these are for services rendered in relation to vessels), cargo handling and storage services, railway haulage services, and container handling services(these are for services rendered in relation to goods). The Dock Labour Board of the Port provides service of labour for handling of goods. The port or the person authorised by the port rendering these services is the service provider.
2.1 Some of the specific charges for the services rendered in respect of port services are as follows.
(i) Port and dock charges consisting of berthing and mooring charges, port dues, pilotage and towage, water supply charges, salvage and diver charges, anchorage fee;
(ii) Cargo handling and storage charges consisting of wharfage for general cargo, warehousing charges, cranage charges, ore handling charges, wharfage on petroleum products, weighment charges for lorries, traffic appliance charges, weighment charges for goods;
(iii) Railway haulage charges for rail-borne goods, local haulage and storage;
(iv) Container handling charges consisting of import, export and transhipment wharfage on containers, equipment charges for handling of containers, container storage charges;
(v) Labour charges.
2.2 All these charges form part of taxable value of port services. Demurrage charges are recovered by port authority as a rental for storage of goods. The fact that these charges apply only if the goods overstay a prescribed free period, does not detract from their being in the nature of a charge for providing aservice in relation to goods. Accordingly they would form part of taxable value. The Dock Labour Board is liable to pay service tax on the labour charges recovered by them. However, estate rentals of the port which is charged for renting of accommodation provided to outsiders and port users, lease rental for land, etc. will not be liable to service tax as these are not services rendered in relation to goods or vessels. For any other charge not mentioned above, the Commissioner may decide the inclusion/exclusion in the value of taxable service on merits.
Annexure
IX
Authorised service station for service or repair of motor cars and two wheeled motor vehicles
1. As per section 65(8), "authorised service station" means any service station, or center, authorized by automobile manufacturer to carry out any service or repair of any motor car or two wheeled motor vehicle manufactured by such manufacturer. The taxable service, as per section 65(72)(zo) is any service provided to a customer by an authorized service station, in relation to any service or repair of motor cars or two wheeled motor vehicles.
2. Any service or repair provided by an authorized service station in relation to motor cars and two wheeled motor vehicles, will be covered in the ambit of service tax. Examples of taxable services include services provided during warranty period, subsequent services such as routine check of performance of engine and vehicle, engine tuning, engine oil check, gear oil check, wheel alignment, wheel balancing, clutch and brake adjustment, wheel rotation, cleaning/washing and any repairs undertaken. However cost of parts and accessories supplied during course of repair and servicing of vehicle will not be includible in the taxable value. Such cost should be shown separately in the bill/ invoice.
3. Authorised service station provides free service in respect of new vehicles during the warranty period on behalf of the manufacturer and they are reimbursed for the same by the manufacture of such vehicle. In this regard a point has been raised as to whether service tax is leviable on the amount reimbursed to them for carrying out free services. It is clarified that though the authorized service stations are providing free service to the customer during the warranty period, they are being reimbursed service charges for the same by the manufacturer of motor vehicles. The definition for value of taxable service specifically provides that the reimbursement received from the manufacturer of motor vehicles for free service rendered to the customer is includible in the taxable value.
Annexure
X
Videotape
production service:
1. As per section 65(83), "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. As per section 65(72)(zi), taxable service is any service provided to a client by any video-tape production agency in relation to video tape production in any manner.
2. It may be seen that the taxable service covers the service of recording of any programme, event or function and includes recording of serials, telefilms or any other programme meant for broadcasting. Also, the scope of taxable service covers any service in relation to video tape production in any manner. Thus facilitation activities, such as providing studio, other facility as lights, gadgets, instruments, devices, providing technical persons for operating the recording devices or for any other activity in relation to video tape production are taxable. Similarly, editing, colouring, dubbing, printing titles and special effects, film processing etc by a video production agency will all come within the scope of this service. It is clarified that reproduction of original master to make further copies of a video-tape will not come within the purview of service tax.
2.1 Services provided by individual videographers has, however, been exempted vide notication No. 7/2001-ST, dated the 9th July, 2001. As such, the tax is payable by studios, shops and other establishments carrying on business of rendering of services in the field of videography.
Annexure
XI
Sound recording service:
1. As per section 65(66), "sound recording" means recording of sound on a magnetic storage device and editing thereof, in any manner. As per section 65(72)(zj), taxable service is any service provided to a client by a sound recording studio or agency in relation to any kind of sound recording.
2. Any service provided by sound recording studio or agency in relation to recording of sound will be covered under the tax net. The activities which fall under the category of service are providing the facility of studio, technical persons, musical instruments and other devices or any other facility or all the facilities in a consolidated manner, required for recording of sound, editing thereof, providing different kinds of sounds from the sound library for use in theater, films and radio etc. services for mixing of sounds, etc. The service charges that are paid for the use of these facilities and it is usually in terms of hours of usage. It is clarified that reproduction of original master to make further copies of the audio tape or CDs etc. will not come within the purview of service tax.
Annexure
XII
Leased circuits / telegraph service / telex service /facsimile service:
1. As per section 65(72) (zd),(ze), (zf) and (zg), taxable service in relation to these services is any service provided, to a subscriber, by the telegraph authority in relation to leased circuits, telegraph, telex and facsimile communication.
2. As regards facsimile services, at present the telegraph authorities are providing it in two ways. One is "bureau fax" where the charges are based on a flat rate per page depending upon paper size and the other is "ordinary fax" where charges are equivalent to the number of calls consumed in faxing the paper. In case of "bureau fax", this is provided by the Dept. of Telecom through post and telegraph offices. In the second type of facsimile service, the service charges are equal to the telephone calls consumed and it is already covered in the ambit of service tax under the category of telephone connections. Therefore, service tax will not be payable in respect of those facsimile services where service charges are based on the number of telephone calls consumed. Private fax operators are providing the second kind of facsimile service and therefore, they are not liable to service tax again.
3. In respect of telegraph, telex and leased services, any service provided by the telegraph authority in this regard is the taxable service and service tax on such services shall be collected in the same manner as applicable to telephone services.
DIRECTORATE OF SERVICE TAX
9TH FLOOR: PIRAMAL CHAMBERS
F.NO.
V/DGST/ 30-Misc-46/2000 /11727
23rd August, 2000.
Subject : Payment of Service Tax by cheque in authorized Banks-Consequences of delay in encashment beyond due date - reg.
The Rule 7 of the Central Government Account (Receipts and Payments) Rules ,1983 interalia provides that Government dues including taxes can be credited by the taxpayers directly into any branch of an authorised Bank. As per Rule 79 of the Treasury Rules of the Central Government, such payments / credits can be mad by cheques also. Accordingly, a large number of tax payers including the Service tax assessees discharge their tax liabilities by depositing a cheque for the required amount in the authorized Banks.
2. As per Rule 6(1) of the Service Tax Rules, 1994 read with Section 68(1) of the Finance Act'1994, an assessee is required to pay Service Tax on monthly / quarterly basis by 25th of the succeeding month. In the event of failure to pay tax by the due date, the assessee is liable to pay interest as well as penalty in terms of Section 75 and 76, ibid, respectively.
3. It is observed that in many cases, the assessees pay the tax due by cheque on the last date or very close to such date. In such cases, many a times, the cheque is encashed and credited to the Government's account after the due date. Hitherto, in such cases also, the department has been levying interest and penalty. This practice has developed presumably because the Rule 79(1) (a) of the Treasury Rules interalia states that "--------, until the cheque is cleared, the Government cannot admit that payment has been received; --------"
4. A number of representations have been received in this Directorate stating that recovery of interest and imposition of penalty in the cases where cheques have been deposited before due date and the amount is credited to the Government account in due course, but after the due date, is
5. The matter has been examined.
6. It is observed that the identical issue had arisen in case of payment of Inland Air Travel Tax (IATT) by Sahara Airlines Ltd. The concerned authorities had imposed penalty and ordered recovery of the interest from the party since the cheques deposited by them towards payment of IATT were credited to the Government after the due date. The matter has now, been decided in second appeal by the Government of India {Sahara Airlines Ltd. Vs. Commissioner of Customs (Appeals) — (2000)110 TAXMAN 378 (G05)}. The Government has held that a harmonious reading of the provisions of Rule 7 of the Central Government Account (Receipts and Payment) Rules and Rules 79 & 80 of the Treasury Rules, makes it clear that the Government dues can be presented in the form of cheque into the authorized Bank. And if the cheque is not dishonored later, the payment shall be deemed to have been made on the date when the cheque was handed over to the Government's bankers. Accordingly, the Government set aside the imposition of penalty / interest etc. in the said case.
6. The ratio of above cited decision of the Government would apply mutatis - mutandis to the payment of service tax also. Therefore, it is clarified that in the cases where the service tax amount has been deposited by an assessee in the authorized Bank, by cheque, before the due date and such cheque is not dishonored later, the Department need not initiate proceedings for recovery of interest /penalty etc. However, if the cheque is not honored in due course or the clearance is abnormally delayed for any lapse on the part of the assessees, the Department would be free to take penal action etc., as deemed fit.
7. The contents of this letter may be brought to the notice of field Officers / Trade by issue of suitable circulars / Trade Notice etc.
(M.G. VENUGOPALAN)
DIRECTOR GENERAL
Service Tax Circular No. 30/1/2000
F.NO. 149/1/99-CX.4
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise
& Customs
Subject: Powers of adjudication of various C. Ex. Officers
Refer to Service Tax Circular No. 11/5/96 dated 22.4.1996 whereby monetary limits for powers of adjudication of Central Excise Officers of different ranks had been laid down for Service Tax assessment. In pursuance of CEGAT decision in the case of M/s Bharati Cellular Ltd. wherein it was held that the adjudication order passed by the commissioner of Central Excise under Section 73 are not appealable in the Tribunal, the matter has been re-examined and it has now been decided to make following changes in the column relating to "Designation of Officers" and "Amount of Service Tax involved" in the Table given in the said circular.
|
(i) |
Additional
Commissioner |
Without
limit. |
|
(ii) |
Joint
Commissioner |
Rs. 20
lakhs. |
|
(iii) |
Acs/DCs |
Rs 5
lakhs |
2. There is no change in remaining contents of Circular.
SUBJECT: Imposition of Service Tax on services rendered by Custom House Agents and Steamer Agents regarding.
By the issue of Notification No. 17/96-Service Tax dt. 6.6.97, service tax has been imposed on Custom House Agents and Steamer Agents w.e.f. 15.6.97. The service Tax is imposed under the provisions of Chapter V of the Finance Act, 1994 (32 of 1994), as amended.
2. CUSTOM HOUSE AGENTS
In the context of these two services, certain points have been raised for clarification which are discussed below:
2.1 The expression "Custom House Agent" has been defined to mean a person licensed, temporarily or otherwise, under the regulations made under sub-section (2) of Section 146 of the Custom Act, 1962. A person is permitted to operate as a Custom House Agent, temporarily under regulation 8(1) and permanently Regulations, 1984.
2.2 As per the Finance Act, 1997, the taxable service rendered by a Custom House Agent means any service provided to a client by a Custom House Agent in relation to the entry or departure of conveyances or the import or export of goods. The value of the taxable service in relation to the service provided by a Custom House Agent to a client has agent from the client for services rendered in any manner in relation to import or export of goods. The service tax is chargeable @ 5% on the value of the taxable service.
2.3 The services rendered by the Custom House Agent are not merely limited to the clearing of the import and export consignment. The CHA also renders the service of loading/ unloading of import or export goods from /at the premises of the exporter / importer, the packing, weighment, measurement of the export goods, the transportation of the export goods to the customs station or the import goods from the customs station to the importer’s premises, carrying out of various statutory and other formalities such as payment of expenses on account of octroi, destuffing/pelletisation, terminal handling, fumigation, drawback/ DEEC processing, survey / amendment fees, dock fees, repairing and examination charges, landing and container charges, statutory labour charges, testing fees, drug control formalities, sorting / marking / stamping / sealing on behalf of the exporter / importer. The Custom House Agent also incurs various other expenses such as crane / fork lift charges, taxi charges, photostat and fax charges, bank collection charges, courier service charges, and miscellaneous other expenses on account of the exporter / importer. For all the above charges, the CHA is ordinarily reimbursed by the importer / exporter for whom the above services are rendered. Apart from the above charges, the CHA also charges the client for his service under the head / nomenclature of ‘agency and attendance charges’ or similar kind of heads which is purported to be his service charge in respect of the services rendered in relation to the import / export goods.
2.4 It is clarified that in relation to Custom House Agent, the service tax is to be computed only on the gross service charges, by whatever head / nomenclature, billed by the Custom House Agent to the client. It is informed that the practice obtaining is to show the charges for services as " agency commission", "charges", "agency and attendance charges", "agency charges" and some similar descriptions. The service tax will be computed only with reference to such charges. In other words, payments made by CHA on behalf of the client, such as statutory levies (cess, Customs duties, port dues, etc.) and various other reimbursable expenses incurred are not to be included for computing the service tax.
2.5 In many cases, the Customs House Agent undertakes "turnkey" imports and exports where a lump sum amount is charged from the client for undertaking various services. In these cases, the lump sum amount covers not only the "agency commission" fee but also other expenses and no separate break-up is given in respect of these expenses. It has been decided that in such cases, the value of the taxable service shall be 15% of the lumpsum amount charged to the client. The Custom House Agents are required to show the service charges as 15% of such lumpsum amount of the bills and Service Tax of 5% will be chargeable on the above 15%.
2.6 Some times, CHAs sub-contract their work to CHAs located in other stations. In such cases, it is possible that the sub-contracting CHA raises the bill on the main CHA who in turn raises the bill to the client. It has been decided that in such cases, the sub-contracting CHA will not be required to pay service tax on the bills raised by him on the main CHA, The service tax will be payable by the CHA who provides the actual service to the client and raises the bill to the client.
2.7 A CHA may have various branch offices located at different stations but all these branch offices do not raise the bills and only the main or central office will be raising the bills. In such cases, only the central office should be registered with the Department.
2.8 Sometimes, the bills raised by the CHA are not entirely paid by the client and the CHA is forced to give discounts. In such cases where the final bill raised is lower than the initial bill, it may be mentioned that the law provides for claiming of refund of excess service tax paid within six months from the date of payment of tax. If the CHA can produce evidence of having charged less services fee, he may claim refund of excess service tax paid, if any, as per the provisions of law.
3. STEAMER AGENTS
3.1 The expression ‘Steamer Agents’ has been defined to mean any person who undertakes, either directly or indirectly.
a. to perform
any service in connection with the ships’ husbandry or dispatch including the
rendering of administrative work related thereto; or
b. to book,
advertise or canvass for cargo for or on behalf of a shipping line; or
c. to provide
container feeder services for or on behalf of a shipping line;
3.2 The taxable service provided by a steamer agent to a shipping line, is the service provided by a Steamer Agent in relation to a ships’ husbandry or dispatch or any administrative work related thereto as well as the booking, advertising or canvassing of cargo, including container feeder services. The value or the taxable service in relation to service provided by a steamer agent to a shipping line, shall be the gross amount charged by such agent from the shipping line for services in relation to a ship’s husbandry or dispatch or any administrative work related thereto or in relation to the booking, advertising or canvassing of cargo, container feeder services including the commission paid to such agent.
3.3 Steamer Agents incur various types of expenses on behalf of the shipping line such as pilottage and berth hire charges, Indian Coast light dues paid to the port authorities, cargo expenses paid to port authorities and transporters such as CONCOR / railways, private transporters, chartered accountants fee, income tax, brokerage paid on export cargo, ship handling expenses paid to stevedoring agents. For all the above charges the Steamer Agent is ordinarily reimbursed by the Shipping line. Further, the Steamer Agent bill the principals i.e. the shipping line, for two types of service charges. One is called the husbandry fee which they charge for a ships’ husbandry. The second is the agency commission which is paid by the shipping line on the import and export cargo. These commissions are usually paid as a percentage of the net ocean freight (basic freight) which is clearly indicated in the agreement entered into between the Steamer Agent and shipping line.
3.4 It is clarified that in relation to the Steamer Agent, the service charges will constitute the husbandry fee as well as the agency commission on import / export cargo. Other expenses incurred by the Steamer Agent on behalf of the shipping line shall not be taken into account.
3.5 It has been represented that the accounting for purposes of service tax should be on per voyage, per vessel basis and further that the registration for service tax purposes should be done only of their seaport offices. It has been decided that only such sea port offices of the Steamer Agent should be registered for service tax purpose which are raising the bill to the shipping lines. The branch offices in ICDs which are just sales offices and do not raise any bills to the shipping line, need not be registered. This is for the reasons that billing is done by the sea port offices and not the branch offices.
4. MISCELLANEOUS
4.1 It may be mentioned that the provisions of Section 68 and 76 of the Finance Act, 1994, as amended by the Finance Act, 1997 will also come into force from 15th June 1997. Section 67(2) of the Finance Act, 1994 provides that the service tax collected during a month shall be deposited to the Government account by the 15th of the succeeding month. Section 68(3) of the Finance Act, 1994 as amended, provides that a person responsible for collecting the service tax who fails to collect such tax shall be liable to pay service tax to the Government within 75 days from the close of the month in which the service was rendered. Section 76 further provides that in case of failure to pay the tax within the period of 75 days, the person responsible for collecting the service tax shall in addition to the tax and interest payable thereon be liable to pay a penalty.
4.2 As per section 69 of the Finance Act, 1994, read with rule 3 and 4 of the Service Tax Rules, 1994, every person responsible for collecting the service tax is required to be registered with the concerned Central Excise Officer appointed under rule 3. Notification No. 18/97 – Service Tax, dated 6.6.97 amends rule 2 of the said rules so as to prescribe that the person responsible for collecting the service tax in relation to the services provided by a CHA or a Steamer Agent shall be the CHA or the Steamer Agent, as the case may be, who raises the bill for services rendered and shall include each of the offices of such agents which raise the bill for services rendered to their client or their principal, as the case may be.
4.3 Rules relating to levy of service tax on other services are already in existence. The procedure to be followed for the registration, maintenance of documents, filing of returns and manner in which the service tax is to be paid, is given below:
a. Registration
Every
person in the jurisdiction of Mumbai-I Central Excise commissionerate who is responsible
for collecting the Service Tax shall make an application to the Assistant
Commissioner, Service Tax Cell,
When a registered assessee
transfers his business to another person, the transferee shall obtain a fresh
certificate of registration.
When a
registered assessee ceases to carry on the activity for which he is registered,
he shall surrender his registration certificate immediately to the Central
Excise authorities.
b. Payment of Service Tax
The
Service Tax collected during any calendar month shall be paid to the credit of
the Central Government by 15th of the following month in form TR-6
challan (yellow colour) e.g., for the month of June 1997, it should be credited
latest by 15th of July, 1997. The head of account for the above 2
services will be intimated shortly.
Any person, responsible for
collecting the service tax who fails to collect the tax shall, notwithstanding
such failure, be liable to pay such tax to the credit of the Central Govt.
within 75 days from the end of the month in which the service was rendered.
c. Interest
on Delayed Payment of Service Tax
If
any assessee fails to pay or credit the Service Tax or any part thereof in
time, he shall pay simple interest @1.5% for every month or part of a month by
which such payment / crediting of the tax or any part thereof is delayed.
d. Filling
of Quarterly Returns
A
Quarterly Return in Form ST-3 (in triplicate) should be filed within 15 days of
the end of the preceding quarter, i.e. latest by 15th July, 15th
October, 15th January and 15th April for the quarters
ending June, September, December and March respectively.
e. Penalty
for failure to collect or pay Service Tax
i. If any person responsible for collecting Service Tax fails to collect such tax, he shall be penalised a sum equal to the amount of Service Tax which he failed to collect, besides paying the actual amount of tax and the interest thereon.
ii. If any person, fails to pay the Service Tax to the credit of the Central Govt. in time after having collected the service tax, he shall pay a penalty of Rs. 100/- which may extend to Rs. 200/- per day during which such failure continues, besides paying the actual service tax and the interest thereon. However, the penalty in this case shall not exceed the amount of Service Tax that he failed to pay.
Note: The amount of Service Tax collected should be separately shown on the invoice for the service provided.
f. Penalty
for failure to furnish the Quarterly Return:
If
a person fails to furnish the Quarterly Return (including "Nil"
return) in form ST-3 in time, i.e.. by 15th
July, 15th October, 15th January and 15th
April for the quarters ending June, September, December and March respectively,
he shall be penalised with a sum of Rs. 100/- extendable to Rs. 200/- for every
day during which the failure continues.
g. Penalty
for suppressing value of taxable service
If
any person is found concealing or supperssing the value of taxable service or
has furnished inaccurate value, etc., such person shall be penalised a sum upto
twice the amount of service tax sought to be evaded by reasons of suppression,
concealment, etc. besides paying the actual service tax and interest, if any.
Apart from the above penalties,
persons committing offences under Chapter V of the finance Act, 1994 would also
be liable to prosecution in certain cases.
h. Records
Every
assessee shall furnish to the Central Excise Officer at the time of filing his
quarterly return for the first time a list of all accounts maintained by the
assessee in relation to service tax including memoranda received from his
branch offices.
5.
The following Annexures are enclosed for the information of the tax-payers.
|
Annexure No. |
Particulars |
|
I |
From ST-1 |
|
II |
From TR-6 |
|
III |
From ST-3 |
CENTRAL EXCISE COMMISSIONERATE-I
C.No.
CE-20 / 41 / ST /Trade Notice
Dated: 29.8.97
TRADE NOTICE No. 69 CE
(Service Tax) / 97
Sub: Imposition is hereby Tax on Tour Operators – reg.
The Trade is hereby informed that in exercise of the powers
conferred by Section 93 of the Finance Act, 1994 (32 of 1994), the Central
Government being satisfied that it is necessary in the public interest so to
do, hereby exempts taxable service provided by a tour operator from so much of
the service tax leviable on such operator, as is in excess of the amount of
service tax calculated on forty per cent. Of the gross amount charged from any
person by such operator for the services provided in relation to a tour, where
the tour operator provides a package tour to any person and the bill issued for
this purpose indicates that it is inclusive of charges for such a tour.
2. This notification shall come into force on the 1st day of September 1997.
Explanation:- For the purposes of this notification, the expression package tour means a tour in which the provision for transportation and accommodation for stay of the person undertaking the tour has been afforded by the tour operator.
(M.K. ZUTSHI)
COMMISSIONER CENTRAL EXCISE-I,
Authority: Notification No. 39/97 dt. 22.8.97
CENTRAL EXCISE COMMISSIONERATE-I:
C.No. CE-20 / 41 / ST /Trade Notice 97
Dated: 29.8.97
TRADE NOTICE No. 70 CE
(Service Tax) / 97
Sub: Imposition of Service Tax on Tour Operators – reg.
The Trade is hereby informed that in exercise of the powers conferred by Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the Central Government, being satisfied that it is necessary in the Public interest so to do, hereby exempts the taxable service provided by a tour operator from so much of the service tax leviable on such operator, for the services provided in relation to a tour, if the tour operator is providing services solely of arranging or booking accommodation for any person in relation to a tour and the bill issued for this purpose indicates that it is towards charges for such accommodation.
Provided that no exemption form the taxable service provided by the tour operator shall be available in case the bill issued to the client only includes the service charges for arranging or booking accommodation for any person in relation to a tour and does not include the cost of such accommodation.
2. This notification shall come into force on the 1st day of September, 1997.
(M.K. ZUTSHI)
COMMISSIONER CENTRAL EXCISE-I,
Authority: Notification No. 40/97 dt. 22.8.97
CENTRAL EXCISE COMMISSIONERATE-I:
C.No. CE-20 / 41 / ST /Trade Notice 97
Dated: 29.8.97
TRADE NOTICE No. 71 CE
(Service Tax) / 97
Sub: Imposition of Service Tax on Tour Operators – reg.
Attention of the Trade is invited to this Office Trade Notice No. 67 to 70 CE (Service Tax) / 97 dated 29.8.97 through which it has been informed about the imposition of Service Tax on the services rendered by Tour Operators w.e.f. 1st September, 1997 in terms of Notification 37 / 97 to 40 / 97-ST dated 22.8.97 – Govt. of India, Ministry of Finance, Department of Revenue.
2. It
is felt that some clarifications in respect of these two services given below
for guidance of Public / Trade would be beneficial.
3. TOUR OPERATOR
3.1 As per section 88 of the Finance Act, 1997, ‘tour operators’ means a person who holds a tourist permit granted under the rules made under the Motor Vehicles Act, 1988 and tour means a journey from one place to another irrespective of the distance between such places and the taxable service means any service provided to any person by a tour operator in relation to a tour the rate of service tax is 5% and the value of taxable service in relation to the service provided by a tour operator to a client, shall be the gross amount charged by such operator from the client for services in relation to a tour and includes the charges for any accommodation, food or any includes the charges for any accommodation, food or any other facilities provided in relation to such tour.
3.2 As per rule 82 of the General Motor Vehicle Rules, 1989 a tourist permit is granted only a tourist vehicle. As per the Motor Vehicles Act, Section 2 (43) a tourist vehicle means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed. The term tour operators covers any person who holds a tourist permit in respect of any vehicle. The service tax on tour operators is on operators who run / operate a tour on a motor vehicle provided that the tour operator holds a tourist permit under the Motor Vehicles Act, 1988 in respect of any motor vehicle. Service tax will be chargeable on all domestic and inbound tourist service provided by a tour operator holding a tourist permit. Service tax will also be chargeable on journeys / tours undertaken by tourist taxis and tourist buses (which also hold tourist permits) within and outside the State where they have been registered as tourist vehicles.
3.3 The tour operator can be a self-employed, single vehicle owner individual or a well organised firm providing a vast range of professional service in the field of tourism whether organized as a sole proprietorship / partnership a private or a public limited company. Even public sector undertaking operating tours, such as Indian Tourism Development Corporation, Delhi Tourism Development Corporation etc. are covered under this levy. However State Roadways Corporations who ply passengers in the neighboring State, will not be covered by the levy as they do not require a tourist permit but operate on the strength of agreements between the concerned State authorities.
3.4 The services rendered by the tour operator may be only for providing transport service within or outside the town, city or states territorial limits. The services rendered by the tour operators may only be limited to providing transport service in relation to a tour or it may also include host of other services as in case of a package tour. The services provided by such a tour operator may also include, apart from providing the basic service of transportation from one place to another, services of providing boarding and lodging arrangements, local sight-seeing and guide services and a wide range of other value added services provided by the tour operators such as providing for porters, booking of arranging accommodation, reservation for entertainment / amusement parks, theatres and museums, providing / health and baby sitting services etc.
3.5 The service tax on services rendered by tour operators in relation to a tour shall be the gross amount charged by such operator from the client and shall include the charges for other services provided such as accommodation, food and other facilities in relation to such tour. In other words, it will be on the gross amount charged to the customer. However, in cases where the tour operator provides a package tour i.e. which necessarily includes accommodation for stay and may also include other facilities such as food, guide services etc., an abatement of 60% of the total amount charged may be given for the purposes of the services tax provided that the bill issued for this purpose clearly indicates that it is inclusive of such charges. In other words, services as provided that the bill issued for this purpose clearly indicates that it is inclusive of such charges. In other words, service tax would be leviable of 40% of the total amount charged in cases where the tour operator provides a package tour and the price of which mandatory includes charges for accommodation for stay provided during the course of the tour (Notification No. 39 / 97 – ST refers). Further an abatement of 90% from the gross amount charged to the client has been provided where the tour operator provides the services solely of booking or arranging accommodation and the bill issued for this purpose includes cost of such accommodation (Notification No. 40 / 97-ST refers). However, this abatement will not be allowed in case the bill issued does not include the cost of such accommodation.
3.6 Service
tax on services rendered by tour operators is only on services rendered in
4. GENERAL
4.1 As per section 69 of the Finance Act, 1994 read with rules 3 & 4 of the Service Tax Rules, 1994, every person responsible for collecting the service tax is required to be registered with the concerned Central Excise Officer appointed under Rule 3 Notification No. 38 / 97-ST, dated 22.8.97 amends Rule 2 of the said rules so as to prescribe that the person responsible for collecting the service tax in relation to the services provided by tour operators shall be the operator who raises the bill for services rendered to any person by such operator.
4.2 Rules relating to service tax on other services have already been notified and the trade is advised to go through them. However, for the benefit of the services which are to be covered by the Notify. No. 37 / 97/ to 40 / 97-ST Service Tax dt. 22.8.1997, the procedures to be followed for Registration, maintenance of documents, filing of returns and the manner in which the service tax is to be paid and which are contained in Chapter V of the Finance Act, 1994, notified to the trade vide this Commissionerate Trade Notice No. 46-CE(Misc.46) / 94 dt. 7.7.1994 are reproduced along with annexures as amended form time to time and by the Finance Act, 1997.
REGISTRATION
4.3 The
assessees will apply for registration in from ST-1 (Annexure-I). An
acknowledgement will be provided on the duplicate copy of the ST-1 form by the
Superintendent of Central Excise (Service Tax) in Room No. 254, CR Building,
I.P. Estate,
4.4 Payment of Service Tax
Rule 6 of the Service Tax Rules, 1994, deals with the payment of service tax. The service Tax will be deposited under Head 0044, in from TR-6 in yellow colour as amended vide Service Tax Circular No. 17 / 11 /96 dated 24.10.96 (a copy of which is enclosed as Annexure-II) in any of the bank branches, at present authorized to collect Central Excise Duties within the jurisdiction of Commissionerate of Central Excise Duties within the jurisdiction of Commissionerate of Central Excise, Delhi. A list of such branches along with the codes Nos. (Annexure-III) is enclosed. It is to be noted that each assessee shall choose only one branch convenient to him and all payment shall be made in that branch only.
4.5 The
concept of provisional assessment has been built into the scheme of service tax
rules. Whenever an assessee, for any reason unable to correctly estimate on the
date of deposit, the actual amounts collected for any particular month of
period, the assessee may make a request in writing to the Asstt. Commissioner of Central Excise (Service Tax). CR Building,
I.P. Estate,
4.6 The Assessee will file the quarterly return in From ST-3 as amended by Notification No. 15 / 97 dated 25.4.97 in (Annexure-IV) in trification. In respect of provisional assessment. The assessee is required to submit a memorandum in From ST-3A (Annexure V) showing details of difference between the Service Tax deposited and the service tax actually collected for each month. The assessee shall submit quarterly return along with the copy each of From TR-6 for the months covered in the quarter.
4.7 The
assessment shall be completed on the basis of the particulars furnished in the
quarterly return ST-3 and ST-3A, by the said Central Excise Officer. The
triplicate copy of the quarterly return so assessed shall be returned to the
assessee with assessment memorandum. In cases where the service tax assessed is
more than the service tax self determined and paid by the amount of interest
determined and baid by the assessee, the assessee shall pay the deficiency
along with the amount of interest determined thereon within 10 days of the
receipt of the copy of the quarterly return from the Central Excise Officer.
The assessee may apply for refund, whenever he has paid service tax in excess
of tax assessed. In accordance with the provisions of section
11-B of the Central Excise Act, 1944.
APPELLATE MECHANISM
5. Appellate mechanism provided in Central Excise Act, 1944 has been made applicable to Service Tax with some modifications (Section 85 and Sec. 86) of Finance Act, 1994 may be referred to).
6. ADMINISTRATIVE MACHINERY FOR COLLECTION OF SERVICE TAX
1. A service tax cell has been created
in the headquarters office of the Commissionerate of Central Excise,
The Assistant Commissioner of Central Excise (Service Tax Cell)
Commissionerate
of Central Excise, Delhi
Room No. 107, C.R. Building I.P. Estate,
New Delhi-2
Tel No. 3722048 & EAPBX 3317741, 43 Ext. 320,376.
The
trade is advised to send all correspondences, application for registration,
returns etc. to the above address.
2. The trade may please note that:
a). Application for registration in form ST-I received from the assessee shall be acknowledged by an officer of the rank of Superintendent of Central Excise.
b) Certificate of registration in the form ST-2 will be issued under the name and signature of the Assistant Commissioner.
c) The Service Tax collected during any calendar month by the Assessee under Sub-section (1) of Section 68 of the Finance Act, 1994 shall be paid to the credit of Central Government in from TR-6 by the 15th of the following month.
d) Any person, responsible for collecting the Service Tax, who fails to collect the Tax in accordance with the provisions of sub-section (II), shall not withstanding such failure be liable to pay such tax such tax to the credit of the Central Government within SEVENTY FIVE DAYS from the end of the month in which the service was rendered.
e) Quarterly Return filed by the assessee (para 4.7 above will be assessed by the Superintendent of Central Excise (Service Tax).
f) For the purpose of provisional assessment whenever the Asstt. Commissioner will make an order for provisional assessment for the tax, on request being received in writing from the Assessee.
g) The powers of Assessment under Section 72, 73, 74 of Chapter V of the Finance Act, 1994 dealing with best judgment Assessment, value of taxable service, escaping assessment, rectification of mistake will be exercised by the Asstt. Commissioner. In respect of Assessment periods of 5 years or more referred in Section 73 of the Finance Act, 1994 (32 of 1994) Commissioner will be the competent authority to exercise the powers.
(M.K. ZUTSHI)
COMMISSIONER CENTRAL EXCISE-I
NEW
Authority:
(i) Boards F. No. B-43/10/97-TRU dt. 22.8.97
(ii) Notification No. 15/97 dt.
25.4.97
(iii) Trade Notice No. 47/96 dt.
4.11.96
CENTRAL EXCISE COMMISSIONER
:
NO.CE-20/ST/ Trade Notice/97 Dt. 5.8.97
TRADE NOTICE NO. 62/97. CE (SERVICE TAX)/97
Sub : Imposition of Service Tax on Outdoor Caterers & Pandal or Shamiana Contractors – reg.
Attention of the trade is invited to this Office Trade Notice No. 58CE(Service Tax)/97 dated 29.7.97 through which it has been informed about the imposition of service tax on the services rendered by Outdoor Caterers and Pandal or Shamiana Contractors w.e.f. 1st August, 1997 in terms of Notification No. 28/97 to 35/97 dated 25.7.97 – Govt. of India, Ministry of Finance, Department of Revenue.
2. It is felt that some clarification in respecto of these two services for guidance would be benefical to Trade industry and Public.
3. OUTDOOR CATERERS:
3. 1 As per Section 88 of the Finance Act, 1997 caterer has been defined to mean any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accouterments for any purpose or occasion and an outdoor caterer has been defined as a caterer engaged in providing services in connection with catering at a place other than his own.
3.2 Further, the taxable service rendered by an outdoor caterer means any services provided to a client by an outdoor caterer. The service tax is chargeable at the rate of 5% and the value of the taxable service provided by an outdoor caterer to a client for services in relation to such catering including the caharges for food, deible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or on any occasion. In cases where the outdoor caterer provides services of catering including supply of food an abatement of 50% of the total amount charged has been provided (Notification No. 30/97-ST refers) subject to the condition that the bills issued in this regard indicate clearly that it is inclusive of the cost of food, eatables, etc.
3.3 In case of catering provided in the premises of an office, factory or similar establishments by a caterer who is also based/located within such premises, taxable service in excess of twenty per cent of the gross amount charged from the client for such services is exempted (Notification No. 31/97-ST refers). In other words, service tax effectively payable will be 1% of the gross bill charged to the client by the outdoor caterer in such cases. These also cover industrial caterers who provide catering under contract an annual/peridical basis and where the cooking/catering is done at the premises of the industry or factory, however catering provided in of the industry or factory, however catering provided in hospitals, medical instutes, shcools, colleges and other academic institutions has been exempted from the levy of service tax (Notification No. 32/97-ST refers).
3.4 In the case of catering provided in trains by the Railway service tax has been exempted vide Notification No. 33/97-ST. Service Tax will however be attracted on inflight catering services provided to the airlines by catering contractors/star hotels etc.
4. PANDAL OR SHAMINANA CONTRACTORS:
1. As per Section 88 of the Finance Act, 1997,’pandal or shamiana’ means a place specially prepared or arranged for organising an official, social or business function and a ‘pandal or shamiana contractor’ means a person engaged in providing any service, either directly or indirectly, in connecting 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;
2. The taxable service rendered by a pandal or shamiana contractor means any service 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. The arate of service tax is 5% and the value of taxable service in relation to service provided by a pandal or shamiana contractor to a client, is the gross amount charged by such contractor from the client for services in relation to the setting up of a pandal or shamiana including the supply of furniture, fixtures, lights and lighting fittings, floor coverings and other articles used therein also the charges for catering, if any. In cases where the pandal contractor also provides services of catering and charges the customer on lumpsum basis, an abatement of 30% of the total amount charged could be given for the purposes of the service tax. In other words, service tax would be leviable on 70% of the total amount charged in such cases (Notifiction No. 34/97-ST refers).
3. Service Tax levy on services rendered by pandal or Shamiana contractors based in rural areas and who are carrying their business within such area has been exempted (Notification No. 35/97-ST refers). For the purpose of this exemption the expression rural areas means the area comprised in any village, and includes the area comprised in any town, the population of which does not exceed twenty thousand or such other figure as the Clentral Government may specify from time to time.
4. Where the pandal contractor provides free services, say for religious events, there will be no tax liability. Similarly in the cases of cancellation of the booking made by the client no service rendered and hence there shall be nil service tax liabilit.
5. GENERAL
1. As per section 69 of the Finance Act, 1994 read with rules 3 & 4 of the Service Tax Rules, 1994. Every person responsible for collecting the service tax is required to be registered with the concerned Central Excise Office appointed under Rule 3. Notification No. 28/97-ST to 35/9-ST Service Tax, dated 25.7.97 amends Rule 2 of the said rules so as to prescribe that the person responsible for collecting the service tax in relation to the services provided by an outdoor caterer shall be outdoor caterer who raises the bill for such services rendered to a client and the person responsible for collecting the service tax in relation to services provided by the Pandal or Shamiana contractor shall be the pandal or shamiana contractor who raises bill for services rendered to a client.
2. Rules relating to service tax on other services have already been notified and the trade is advised to go through them. However, for the benefit of the services which are to be covered by the Notifications No. 28/97 to 35/97-ST. Service Tax dated 25.7.97 the procedure to be followed for registration, maintenance of documents, filling of returns and the manner in which the service tax is to be paid and which were contained in chapter v of the Finance Act,1994, notified to the trade vide this Commissionerate Trade Notice No. 46-CE (Misc 46)/94 dt. 7.7.94 are reproduced alongwith annexures as amended from time to time and by the Finance Act, 1997.
Registration :
3. The
assessees will apply for registration in form ST-1 (annexure-I). An acknowledgement
will be provided on the duplicate copy of the ST-1 form by the Superintendent
of Central Excise (Service Tax). Registration No. will be allotted on receipt
of their application.
Payment of Service Tax:
4. Rule 6 of the Service Tax Rulels, 1994, deals with the payment of Service Tax. The service tax will be deposited under Head 0044, in form TR-6 in yellow colour as amended vide Service Tax Circular No. 17/11/96 dated 24.10.96 (a copy of which is encolsed as Annexure –II ) in any of the bank branches, at present authorised to collect Central Excise Duties within is the jurisdiction of Commissionerate of Central Excise, Delhi-1. A list of such branches alongwith the codes Nos.(Annexure-III) is enclosed. It is to be noted that each assessee shall choose only one branch convenient to him and all payment shall be made in that branch only.
5. The concept of provisional assessement has been built into the scheme of the Service Tax Rules. Whenever an assessee, for any reason, unable to correctly estimate on the date of deposit, the actual amounts collected for any particular month or period, the assessee may make a request in writing to the concerned Assistant Commissioner of Central Excise (Service Tax), to make a provisional assessment of the tax on the basis of the amount deposited. The said Central Excise Rules, 1944, have been made applicable. However, there is no requirement to enter into a bond in respect of service tax.
6. The assessees will file the quarterly
return in Form ST-3 as amended vide Notification No. 15/97 dated 25.4.97 in
(Annexure-IV) in triplicate. In respect of provisional assessment, the assessee
is required of provisional memorandum in Form ST-3A (Annexure V) showing
details of difference between the service tax deposited and the service tax
actually collected for each month. The assessee shall submit quarterly return
alongwith the copy each of form TR-6 for the months covered in the quarter.
7. The assessment shall be completed on the basis of the particulars furnished in the quarterly return ST-3 and ST-3A, by the said Central excise Officer. The triplicate copy of the quarterly return so assessed shall b3e returned to the assessee with assessment memorandum. In cases where the service tax assessed is more than the service tax self determined and paid y the assessee, the assessee shall pay the deficiency alongwith the amount of interest determined thereon within 10 days of the receipt of the copy of the quarterly return from the Central Excise Officer. The assessee may apply for refund, whenever he has paid service tax in excess of tax assessed, in accordance with the provisions of section 11-B of the Central Excise Act, 1944.
Appellate Mechanism
6. Appellate mechanism provided in Central excise Act, 1944 has been made applicable to Service Tax with some modifications (Section 85 and Sec. 86) of Finance Act, 1994 maybe referred to)
7. ADMINISTATIVE MACHINERY FOR COLLECTION OF SERVICE TAX
A service tax cell has been created in the jurisdiction of Divisional Offices of Delhi-1 Commissionerate of Central Excise. The address and location of Divisional Offices/area are as under:
The trade is advised to send all correspondence, applications for registration, returns etc. to the Jurisdictional Divisions as per Annexure-A.
2. The trade may please note that:
a. Application for registration in form ST-1 received from the assessee shall be acknowledged by an officer of the rank of Superintendent of Central Excise.
b. Certificate of registration in the form ST-2 will be issued under the name and signature of the Assistant Commissioner.
c. The Service Tax collected during any calendar month by the Assessee under Sub-section (1) of Section 68 of the Finance Act, 1994 shall be paid to the credit of Central Government in form TR-6 by the 15th of the following month.
d. Any person, responsible for collecting the Service Tax, who fails to collect the Tax in accordance with the provisions of sub-section (II), shall not withstanding such failure be liable to pay such tax to the credit of the Central Government within SEVENTY FIVE DAYS from the end of the month in which the service was rendered.
e. Quarterly return filed by the assessee (para 4.7 above) will be assessed by the Superintendent of Central Excise (Service Tax).
f. For the purpose of provisional assessment whenever the Asstt. Commissioner will make an order for provisional assessment for the tax, on request being received in writing from the Assessee.
g. The powers of Assessment under Sections 72, 73, 74 of Chapter V of the Finance Act, 1994 dealing with best judgment Assessment, value of taxable service, escaping assessment, rectification of mistake will be exercised by the Asstt. Commissioner. In respect of Assessment periods of 5 years or more referred in Section 73 of the Finance Act, 1994 (32 of 1994) Commissioner will be the completent authority to exercise the powers.
Sd/-
(M. K. ZUTSHI)
COMMISSIONER
CENTRAL EXCISE-I
NEW
Authority:
i. Boards F. No. B-43/8/97-TRU dt. 25.7.97
ii. Notification No. 15/97 dt. 25.4.97
iii. Trade Notice No. 47/96 dt. 4.11.96.
NOTIFICATION
CENTRAL EXCISE COMMISSIONERATE:
C.No. CE-20/41/ST/ Trade Notice/97
Dated:29.7.97
TRADE NOTICE No. 58 CE
(Service Tax)/97
Sub: Imposition of Service Tax on OUTDOORS CATERERS & PANDAL or SHAMIANA CONTRACTORS –reg.
The Trade is hereby informed that levy of Service Tax on the services rendered by Outdoor Caterers & Pandal or Shaminan Contractors will come into force from 1.8.97 (Notification No. 28/97-Service Tax dt. 28.7.97). The rate of service tax is 5% in case of both the above services. In the case of services rendered by Outdoor Caterers the person responsible for collecting the service tax shall be caterers who raises the bill for services rendered to the client. The service tax is leviable only on 50% of the taxable service in relation to services by outdoor caterers where the caterer also supply food.
In cases where the caterer is providing services in the
premises of an office, factory etc. and is located within such premises, the
service tax is to be paid on only 20% of the gross bill charged to the client
.(Noti. No. 30/97 & 31/97-Service Tax dt. 28.7.97).
However catering services provided by such caterers in Educational Institutions and Medical Establishments have been fully exempted from Service Tax (Notification No. 32/97-Service Tax dt. 28.7.97). Catering Services in Railway Trains have also been exempted from Service Tax (Notification No. 33/97 dt. 28.7.97). In the case of service provided by Pandal or Shamiana Contractors, the service tax liability shall fall on the contractors who raises the bill for services rendered to any client. Service Tax shall be computed on the gross amount charged by such contractor form the client for service rendered in relation to the setting up of pandal or shamiana including the supply of furniture, fixtures, lights and lighting fittings, floor covering and other articles used therein. In cases where the pandal contractor also provides services of catering charges, an exemption of 30% of the Service Tax chargable on the gross amount has been provided (Notification No. 34/97-Service Tax dt. 28.7.97).
The Service Tax on services rendered by pandal or shamiana contractors based in Rural areas and who are carrying their business within such area has been exempted (Notification No. 35/97-Service Tax dt. 28.7.97).
Copies of the notifications are available with Service Tax Branch of this Commissionerate.
(M.K.ZUTSHI)
COMMISSIONER
CENTRAL EXCISE-I
NEW
Authority:
1. Notification No. 28/97 to 35/97 dt. 28.7.97
ATTESTED
Deputy Commissioner (Tech).
CENTRAL EXCISE,
CENTRAL EXCISE COMMISSIONERATE-I
C.No.
CE-20/41/ST/Trade Notice/97
Dated: 29.8.97
TRADE NOTICE No. 68 CE
(Service Tax) /97
Sub: Imposition of Service Tax on Tour Operators.
The Trade is hereby informed that in exercise of the powers conferred by sub-section (1), read with sub-section (2) of Section 94 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following rules further to amend the Service Tax Rules, 1994, namely:
1. (1) These rules may
be called the Service Tax (Seventh Amendment) Rules, 1997.
(2) They
shall come into force on the 1st day of September, 1997.
2. In the Service Tax Rules, 1994, in rule 2, in sub-rule (1), in clause (d), after sub-clause (xv), the following sub-clause shall be inserted, namely:
(xvi) in relation to services provided by a tour operator, every tour operator, who raises the bill for services rendered to any person by such operator".
(M.K. ZUTSHI)
COMMISSIONER CENTRAL EXCISE-I,
Authority: Notification No. 38/97 dt. 22.8.97
Government of India
Ministry of Finance
(Department of Revenue)
ORDER NO. 5/1/97
Service Tax Rule (3)
Subject: Service Tax - Appointment of Central Excise Officers for the purpose of assessment and collection of service tax - regarding.
In exercise of the powers conferred by Rule 3 of Service Tax Rules, 1994, the Central Board of Excise and Customs hereby makes the following amendment in Order No. 3/3/94- Service Tax Rules (3) dated the 11th October, 1994:
In the opening paragraph, in the Table under the column
titled 'Assessee', for the sub-clauses (vi) and (iv)
against Serial No. 2 and 4 respectively, the following shall be substituted.
namely:-
"Any other assessee (other than those relating advertising services, courier services, radio paging services, custom house agents' services, steamer agents' services, air travel agents' services, air travel agents' services, mandap keepers' services, consulting engineers' services, manpower recruitment agents', services, clearing and forwarding agents' services, rent-a-cab scheme operators services, outdoor caterers' services and pandal or shamiana contractors' services)".
(Navneet goel)
Under Secretary to the
Government of
F. No. B.43/8/97-TRU
Ministry of Finance
Department of Revenue
Tax Research Unit
To
All Chief Commissioners of Central Excise and Customs
All Commissioners of Central Excise and Customs
Sir,
Sub: service Tax on Outdoor Caterers and Pandal or Shamiana operators
I am directed to invite your attention to Section 88 of the Finance Act, 1997 which, inter-alia provides for levy of service tax on the services rendered by outdoor caterers and pandal or shamiana contractors. It has been decided to bring the above services under the service tax net with effect from 1st August, 1997. Notification Nos. 28/97-ST to 35/97, all dated the 25th July 1997 have been issued in this regard (copies enclosed).
2. OUTDOOR CATERERS:
2.1 As per Section 88 of the Finance Act, 1997, caterer has been defined to mean 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 and an outdoor caterer has been defined as a caterer engaged in providing services in connection with catering at a place other than his own.
2.2 Further, the taxable service rendered by an ‘outdoor caterer’ means any service provided to a client by an service provided by an outdoor caterer to a client, is the gross amount charged by such caterer from the client for services in relation to such catering including the charges for good, edible preparations, alcoholic o9r non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or on any occasion. In cases where the outdoor caterer provides services of catering including supply of food an abatement of 50% of the total amount charged has been provided (Notification No. 30/97-ST refers) subject to the condition that the bills issued in this regard indicate clearly that it is inclusive of the coast of food, eatables, etc.
2.3 In case of catering services provided in the premises of an office, factory or similar establishments by a caterer who is also based/located within such premises, taxable service in excess of twenty per cent of the gross amount charged from the client for such services is exempted (Notification No. 31/97-ST refers). In other words, service tax effectively payable will be 1% of the gross bill charged to the client by the outdoor caterer in such cases. These also cover industrial caterers who provide catering under contract on an annual/periodical basis and where the cooking/catering is done at the premises of the industry or factory. However catering provided in hospitals, medical institutes, schools, colleges and other academic institutions has been exempted from the levy of service tax (Notification N. 32/97-ST refers).
2.4 In
the case of catering provided in trains by the Railways service tax has been
exempted vide Notification No. 33/97-ST. Service Tax will however be attracted
on inflight catering services provided to the airlines by catering
contractors/star hotels etc.
3. PANDAL OR SHAMIANA CONTRACTORS
3.1 As per Section 88 of the Finance Act, 1997, ‘pandal or shamiana’ means a place specially prepared or arranged for organizing an official, social or business function and a ‘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, fixture, lights and lighting fittings, floor coverings and other articles for use therein;
3.2 The taxable service rendered by a pandal or shamiana contractor means any service 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. The rate of service tax is 5% and the value of taxable service in relation to service provided by a pandal or shamiana contractor to a client, is the gross amount charged by such contractor from the client for services in relation to the setting up of a pandal or shamiana including the supply of furniture, fixtures, lights and lighting fittings, floor coverings and other articles used therein also the charged for catering, if any. In cases where the pandal contractor also provides services of catering and charges the customer on lumpsum basis an abatement of 30% of the total amount charged could be given for the purposes of the service tax. In other words, service tax would be leviable on 70% of the total amount charged in such cases (Notification No. 34/97-ST refers).
3.3 Service Tax levy on services rendered by pandal or shamiana contractors based in rural areas and who are carrying their business within such area has been exempted (Notification N. 35/97-ST refers). For the purpose of this exemption the expression rural areas means the area comprised in any village, and includes the area comprised in any town, the population of which does not exceed twenty thousand or such other figure as the Central Government may specify from time to time.
3.4 Where the pandal contractor provides free services, say for religious events, there will be no tax liability. Similarly in the cases of cancellation of the booking made by the client no service rendered and hence there shall be nil service tax liability.
4. General
4.1 As per section 69 of the Finance Act, 1994 read with rules 3 & 4 of the Service Tax Rules, 1994, every person responsible for collecting of the service tax is required to be registered with the concerned Central Excise Officer appointed under Rule 3. Notification No. 29/97-ST, dated 25.7.97 amends rule 2 of the said rules so as to prescribe that the person responsible for collecting the service tax in relation to the services provided by an outdoor caterer shall be outdoor caterer who raises the bill for such services rendered to a client and the person responsible for collecting the service tax in relation to services provided by the pandal or shamiana contractor shall be the pandal or shamiana contractor who raises the bill for such services rendered to a client.
4.2 Rules
relating to levy of service tax on other services are already in existence. The
Board desires that –the Commissioners should issue suitable notices today
itself for information and guidance of the trade. The Trade notices may include
the procedure to be followed for the registration, maintenance of documents,
filing of returns and manner in which the service tax is to be paid. The Trade
Notices should provide complete information and guidance to the new assessees
and they should be self contained in all respects. The Commissioners are
requested also to kindly incorporate the provisions of Chapter V of the Finance
Act, 1994 as amended by Finance Act, 1997 and also copies of Service Tax Rules,
1994 (incorporating all the amendments), form of challans, TR-6, etc. in the
Trade Notice, Heads of Accounts for payment of service tax on the above
services will be intimated in due course. The intention is to provide complete
guidance to the new assesses so that all relevant information is made available
to them at one place. The field officers are also requested to kindly provide
all assistance and guidance to the new assesses in explaining the provisions of
service tax and in clarifying their doubts. All possible steps may kindly be
taken by the Commissioners to facilitate smooth implementation of the
imposition of service tax on the above services.
4.3 The Commissioners are requested to give wide publicity to the fact that the service tax on the above two services will come into force from 1st August, 1997. They should also give suitable publicity through newspapers and through the associations of trade immediately to apprise them about the provisions of law and procedures to be followed.
4.4 It
has been decided that for all the Commissionerates, the concerned Commissioner having
jurisdiction in central excise matters will have corresponding jurisdiction for
service tax matters. This applies to commissionerates in Mumbai and
Yours Faithfully,
Sd/-
(T. R. Rustagi)
Tel: 3012687
NOTIFICATION
F.No. B.43/7/97-TRU
Ministry of Finance
Department of Revenue
Tax Research Unit
****
To
All Commissioners of Central
Excise and Customs
Sir,
Sub: Service Tax on Clearing & Forwarding Agents and renta-cab scheme operators.
I am directed to invite your attention to Section 88 of the Finance Act, 1997 which, inter-alia, provides for levy of service tax on the services rendered by clearing and forwarding agents and rent-a-cab scheme operators. It has been decided to bring the above services under the service tax net with effect from 16th July, 1997. Notification Nos. 26/97-ST and 27/97-ST, both dated the 11th July, 1997 have been issued in this regard (copies enclosed).
2. CLEARING AND FORWARDING AGENTS
2.1 "Clearing and forwarding agent" has been defined as "any person who is engaged in providing any service, either directly or indirectly, connected with clearing and forwarding operations in any manner to any other person and includes a consigning agent." The taxable service has been defined as "any service provided to a client, by C&F agent in relation to clearing and forwarding agents are engaged/appointed by manufacturer of goods (both excisable and non-excisable goods),
2.2 Normally, there is a contract between the principal and the clearing and forwarding agent detailing the terms and conditions and also indicating the commission or remuneration to which the C&F agent is entitled. A clearing and Forwarding agent normally undertakes the following activites-
(a) Receiving the goods from the factories or premises of the
principal or his agents;
(b) Warehousing
these goods;
(c) Receiving despatch orders from the principal;
(d) Arranging
despatch of goods as per the directions of the principal by engaging transport
on his own or through the authorised transporters of the principal;
(e) Maintaining records of the receipt and despatch of goods and
the stock available at the warehouse;
(f) Preparing invoices on behalf of the principal
2.3 It has been decided that the person responsible for collecting the service tax in the case of services rendered by a clearing and forwarding agent shall be the person engaging/appointing a clearing and forwarding agent (Notification No. 26/97-service tax refers). It may be noted that unlike in the case of other service tax levies where the service provider is the person responsible for collecting the service tax, in the case of services rendered by the clearing and forwarding agents the service tax liability shall be discharged by the person availing the service so rendered. In order words, the principal who engages a clearing and forwarding agent is the person responsible for collecting and paying the service tax to the exchequer, Commissioners of Central Exicse may therefore take necessary action accordingly and also make this position clear by issue of suitable trade notice.
2.4 Further under the Finance Act, 1997 the value of taxable service rendered by a clearing and fordwarding agent has been defined as the gross amount charged by such agents from the client for the services of clearing and fordwaring operations in any manner. However, under service Tax rules it has been provided that the value of taxable service in relation to services rendered by clearing and forwarding agents to a client shall deemed to be the gross amount of remuneration or commision (by whatever name called) paid to such agent by the client engaging such agent (Notification No. 27/97-ST refers).
2.5 For ther services rendered, the C&F agent receives commission or remuneration which usually consists of two components:
(I) Minimum commission on a flat rate or
turnover basis depending on the packages/consignmentshandled;
(II) A variable commission based on performance which is computed on the performance indicators agreed upon between the agent and the principal. This is usually given as a percentage of the turnover.
The above two constitute the remuneration or commission paid to the C&F agent by the principal
2.6 In cases where C&F agents engaged for various towns, states or areas are paid only by the regional or the head office of the company appointing such agents, for service tax purposes it would suffice to register only such regional or head office. In such cases the regional office or the head office, as the case may be, should also be required to give an undertaking to discharge the service tax liability.
3. RENT-A-CAB SCHEME OPERATORS
3.1 As per Section 88 of the Finance Act, 1997, 'rent a cab scheme operator' means a person who is the holder of a licence under the Rent-a-Cab Scheme, 1989 framed by the Central Government under the Motor Vehicles Act, 1988. A person is granted a licence by the State Transport Authority under rule 6 of the scheme. a licence is granted to a person who interalia, maintains not less than 50 motor cabs having tourist permits issued under sub-section (9) of section 88 of the Motor Vehicles Act. The Rent a cab scheme operatos, under the scheme are mandatorily required to maintain branch offices or sublicensee offices in at least five cities of tourist importance with facilities for houseing, maintenance and repair of vehicles.
3.2 Under the Rent-a-cab Scheme, 1989 the operator is required to maintain a register for each vehicle incorporating particulars as regards the hiring of the same in the format prescribed under the Scheme. Further, the operator under Rule 9 of the Scheme is required to collect hire charges from a foreign national or a non-resident Indian, only in foreign exchange.
3.3 The taxable service rendered by a Rent-a-cab scheme operator means any service provided to any person, by a rent a cab scheme operator in relation to the value of taxable service in relation to the servie provided by a Rent a cab scheme operator to any person, shall be the gross amount charged by such operator from such person for services in relation to the renting of a cab and includes such rental.
3.4 The value of taxable service in relation to the service provided by a Rent a cab scheme operator to any customer, shall be the gross amount charged by such operator from such customer for services in relation to the renting of a cab and include the rental so charged. Any other charges billed to the customer such as processing charges, administrative fees, charges for providing extra accessories or providing other value added services such as a provision of driver etc. shall also be includibe in the gross amount chargeable to service tax.
3.5 However service tax will not be payable in cases where a bill has been raised on a Rent a Cab Scheme operator, by another rent-a-cab scheme operator who has sub-let the motor cab to the latter operator provided who pays service tax on the amount billed to his client for renting out the motor cab so obtained by him.
3.6 The Commissionerates of Central Excise may contact the jurisdictional State Transport Authority who is the licensing authority under the rent-a-cab scheme, 1989 to identify and register the rent-a-cab scheme operators for the purposes of service tax.
4. GENERAL:
4.1 As per section 69 of the Finance Act, 1994 read with rules 3 & 4 of the Service Tax Rules, 1994, every person responsible for collection of the service tax is required to be registered with the concerned Central Excise Officer appointed under Rule 3. Notification No. 27/97-Service Tax dated 11.7.97 amends rule 2 of the said rules so as to prescribe that the person responsible for collecting the service tax in relation to the services provided by a clearing and tax in relation to the services provided by a clearing and forwarding agent shall be the person who engages a clearing and forwarding agent and by whom remunderation or and commission (by whatever name called) is paid for such services to the said agent and the person responsible for collecting the service tax in relation to the services provided by rent-ac-cab scheme operator shall be the operator who raises the bill for services rendered to any person by such operator.
4.2 Rules relating to levy of service tax on other services are already in existence. The Board desires that the Commissioners should issue suitable notices today itself for information and guidance of the trade. The tade notices may include the procedure to be followed for the registration, maintenance of documents, filing of returns and manner in which the service tax is to be paid. The Trade Notices should provide complete information and guidance to the new assessees and they should be self contained in all respects. The Commisioners are requested also to kindly incorporate the provisions of Chapter V of the Finance Act, 1994, as amended by Finance Act, 1997 and also copies of Service Tax Rules, 1994 (incorporating all the amendments), form of challans, TR-6, etc. in the Trade Notice. Heads of Accounts for payment of service tax on the above services will be intimated in due course., The intention is to provide complete guidance to the new assessees so that all relevant information is made available to them at one place. The field officers are also requested to kindly provide all assistance and guidance to the new assessees in explaining the provisions of service tax and in clarifying their doubts. All possible steps may kindly be taken by the Commissioners to facilitate smooth implementation of the imposition of service tax on the above services.
4.3 the commissioners are requested to give wide publicity to the fact that the service tax on the above two services will come into force from 16th July, 1997. They should also give suitable publicity through newspapers and through the associations of trade immediately to apprise them about the provisions of law and procedures to be followed.
4.4 It
has been decided that for all the Commissionerates, the concerned Commissioner
having jurisdiction in central excise matters will have corresponding
jurisdiction for service tax matters. This applies to Commissionerates in
Mumbai and
Yours faithfully,
Sd/-
(T.R. Rustagi)
Tel: 3012687
Government of India
Ministry of Finance
(Department of Revenu)
ORDER NO. 4/1/97
Service tax Rule (3)
Subject: Service Tax- Appointment of Central
Excise Officers for the purpose of assessment and collection of service
tax-regarding.
In
exercise of the powers conferred by Rule 3 of Service Tax rules, 1994, the
Central Board Excise and Customs hereby makes the following amendment in Order
No. 3/3/94 Service Tax Rules (3) dated the 11th October, 1994:
in the opening paragraph, in
the Table under the column titled 'Assesse', for the sub-clauses (vi) and (iv)
against Serial No. 2 and 4 respectively, the following shall be substituted,
namely:-
"Any other assessee (other than those relating to advertising services, courier services, radio paging services, custom house agents' services, steamer agents' services, air travel agents' services, mandap keepers' services, consulting engineers' services, manpower recruitment agents' services, clearing and forwarding agents' services and rent-a-cab scheme operators' services)".
RAJIV TALWAR)
UNDER SECRETARY TO THE
GOVERNMENT OF
NOTIFICATION
OFFICE OF THE COMMISSIONER OF
CENTRAL EXCISE:
MUMBAI-I
115,
(SERVICE TAX CELL)
TRADE NOTICE NO. 7/97,
SERVICE TAX DT. 4.7.97
1. Attention of the Trade/Public and all concerned, is invited to Section 88 of the Finance Act, 1997 which provides, interalia, for charging of service tax on the services rendered by Consulting Engineers and Manpower Recruitment Agency, Levy of Service Tax on these services will come into force from 7.7.97 vide Notification No. 23/97-Service Tax dt. 2.7.97 Notification No. 24/97-Service Tax dt. 2.7.97 has been issued to define the person responsible for collecting the Service Tax in relation to the services provided by the Consulting Engineers and Manpower Recruitment Agency.
2. A cell has been created in the Headquarters of the Commissionerate of Central Excise, Mumbai-1 headed by the Assistant Commissioner of Central Excise to deal with the service tax matters. the address of the said Assistant Commissioner is as under :
" Assistant Commissioner, Central Excise
6th Floor, (Service Tax Cell),
115,
Churchgate,
Mumbai-400020."
All the assessees are requested to
approach the above Assistant Commissioner for any assistance in the matter of
service tax.
3. A general scheme for the purpose of implementation, covering aspects of registration, maintenance of records, assessment, quarterly return and appellate mechanism has been provided by Service Tax Rules, 1994. A special provision has been made in Rule 6 for provisional assessment of the service tax.
4. As per Finance Act, 1997 the taxable services rendered by Consulting Engineer & Manpower Recruitment Agency to any person is chargeable to service tax 5% of the value of the taxable service. The salient features of the scheme related to the above two services are as follows :
I) Registration
a) Every
person in the jurisdiction of Mumbai-I Central Excise Commissionerate who is
responsible for collecting the Service Tax shall make an application to the
Assistant Commissioner, Service Tax Cell, 6th Floor, 115,
b) An acknowledgement will be provided on the duplicate copy of the ST-1 form by the Superintendent of Central Excise, Service Tax, 115, M.K. Road, Churchgate, Mumbai-I. The registration certificate will be granted in Form ST-2 appended to the Rules, within 7 days from the date of receipt of application of registration. If the registration certificate is not granted within the said period, the registration applied for shall be deemed to have been granted.
c) As per section 69 of the Finance Act, 1994 read with rules 3 & 4 of the Service Tax Rules, 1994, every person responsible for collection of the service tax is required to be registered with the concerned Central Excise Officer appointed under Rule 3. Notification No. 24/97-Service Tax, dated 2.7.97 amends Rule 2 of the said rules so as to prescribe that the person responsible for collecting the service tax in relation to the services provided by a manpower recruitment agency shall be the agency which raises the bill for services rendered to a client and the person responsible for collecting the service tax in relation to the services provided by a consulting engineer shall be the consulting engineer who raises the bill for services rendered to a client.
d) When a registered assessee transfers his business to another person, the transferee shall obtain a fresh certifcate of registration.
e) When a registered assessee ceases to carry on the activity for which he is registered, he shall surrender his registration certificate immediately to the Central Excise authorities.
II) Payment of Service Tax
a) Rule 6 of the Service Tax Rules, 1994, deals with the payment of Service Tax. The existing banks authorised to collect Central Excise duties in each of the Commissionerate collect Central Excise duties in each of the Commissionerate will also undertake the collection work of service tax for the present.
b) As per Sub-Section 2 of Section 68 of the Finance Act, 1994, the Service Tax collected during any calendar month shall be paid to the credit of the Central Governemnt by 15th of the following month in form TR-6 challan (yellow colour) e.g., for the month of July 1997, it should be credited latest by 15th of August 1997. as envisaged sub-section 3 of Section 68 of Chapter V of the Finance Act, 1994 as amended, a person responsible for collecting the service tax who fails to collect such tax shall be liable to pay such tax to the Govt. within 75 days from the close of the month in which the service was rendered. for payment of Service Tax, the TR-6 challan in yellow colour may be used. The head of account for payment of the above 2 services will be intimated shortly.
c) The comcept of provisional assessment has been built into the scheme of th Service Tax Rules. Whenever an assessee is, for any reason, unable to correctly estimate on the date of deposit, the actual amounts collected for any particular month or period, the assessee may make a request in writing to the Assistant Commissioner, Central Excise (Service Tax) to make provisional assessment of the tax on the basis of the amount deposited. The said assistant Commissioner may on receipt of such request, order Provisional Assessment of tax. In this regard, the provisions of the Central Excise Rules, 1944, have been made applicable except for the provisions relating to furnishing the bond.
d) The
assessee are required to file quarterly return in Form ST-3 in triplicate
under sub-Rule 7 of Service Tax Rules, 1994, to the Superintendent, Central
Excise, Service Tax cell. In the case of provisional assessment, the
assessee is required to submit a memorandum in
III) Interest on Delayed Payment of Service Tax
If any assessee fails to pay or credit the Service Tax or any part thereof in time, he shall pay simple interest @1.5% for every month or part of a month by which such payment/crediting of the tax or any part thereof is delayed.
IV) Filing of Quarterly Returns
A quarterly return in Form ST-3 (in triplicate) should be filed within 15 days of the end of the preceding quarter, i.e. latest by 15th July, 15th October, 15th January and 15th April for the quarters ending June, September, December and March respectively.
V) Penalty for failure to collect or pay Service Tax
a) If any person responsible for collecting Service Tax fails to collect such tax, he shall be penalized for a sum equal paying the actual amount of tax and the interest thereon.
b) If any person, fails to pay the Service Tax to the credit of the Central Govt. in time after having collected the service tax, he shall pay a penalty of Rs. 100/- which may extend to Rs. 200/- per day during which such failure continues, besides paying the actual service tax and the interest thereon, However, the penalty in this case shall not exceed the amount of Service Tax that he failed to pay.
Note: The amount of Service Tax collected should be separately shown on the inovice for the service provided.
VI) Penalty for failure to furnish the Quarterly Return
If a person fails to furnish the Quarterly Return (including "Nil" return) in Form ST-3 in time, i.e. by 15th July, 15th October, 15th January and 15th April for the quarters ending June, September, December and March respectively, he shall be panalized for a sum of Rs. 100/- extendable to Rs. 200/- for every day during which the failure continues.
VII) Penalty for suppressing value of taxable service
a) If any person is found concealing or suppressing the value of taxable service or has furnished inaccurate value, etc., such person shall be penalised a sum upto twice the amount of service tax sought to be evaded by reason of suppression, concealment, etc. besides paying the actural service tax and interest, if any.
b) Apart from the above penalties, persons committing offences under Chapter V of the Finance Act, 1994, would be liable to prosecution in certain cases.
VIII) Appellate Mechanism
Appellate mechanism relating to Central Excise have been made applicable for the purpose of Service Tax also with necessary modifications.
5. Certain clarifications regarding collection of service tax from Consulting Engineers & Manpower Recruitment Agencies are enclosed as Annexure-I to this trade notice. The following Annexures are enclosed with this Trade Notice for the information of the tax-payers.
|
Annexure No. |
Particulars |
|
I |
Clarification regarding service tax
on services rendered by Consulting Engineers & Manpower Recruitment
Agencies |
|
II |
|
|
III |
|
|
IV |
6. For further information, the Assistant Commissioner,
(Service Tax Cell), 6th floor,
7. The Commissioner of Central Excise having jurisdiction in Central Excise matters will have corresponding jurisdiction for service tax matter.
8. All the Trade Associations are requested to bring the contents of the said matters to the notice of their members in particular and the trade and all other concerned in general.
Sd/-
07.07.97
(N. KRISHNAMURTHY)
COMMISSIONER
CENTRAL EXCISE,
MUMBAI-1
ATTESTED
(M.C.R. SHASTRI)
DEPUTY COMMISSIONER
SERVICE TAX CELL,
CENTRAL EXCISE,
MUMBAI-1
F.No. V(30)
STC/15-56/97
Mumbai, the July 1997.
(Based on
Ministry letter F.No. B43/5/97-TRU dt. 2.7.97)
Copy to :
As usual
CENTRAL EXCISE COMMISSIONERATE:
C.NO. CE-20/41/ST/Trade Notice/97
Dated:4.7.97
TRADE NOTICE NO. 50 CE (
SERVICE TAX )/97
Sub : Imposition of Service tax on Consulting Engineer and Manpower Recruitment Agency
Trade is hereby informed that in exercise of the powers conferred by sub-section (1) read with sub-section (2) of Section 94 of the Finance Act,1994 (32 of 1994), the Central Government, hereby makes the following rules to further amend the Service Tax Rules, 1994 (hereinafter referred to as the said rules ), mainly:-
(i) These
rules may be called the Service Tax (Fourth Amendment) Rules,1997.
(ii) They shall come into force on the 7th day of July,1997.
(2). In the said rules,in rule 2,in sub-rule (1), in clause (D), after sub-clause (ix), the following sub-clauses shall be inserted, namely:-
(x) in relation to services provided by a consulting engineer, every consulting engineer who raises a bill for services rendered to a client by such engineer;
(xi) in relation to services provided by a manpower recruitment agency, every manpower recruitment agency which raises a bill for services rendered to a client by such agency.
COMMISSIONER
OF CENTRAL EXCISE,
Authority : Notification No. 24/97 dt. 2.7.97
CENTRAL EXCISE COMMISSIONERATE:
C.NO. CE-20/41/ST/Trade
Notice/97
Dated: 4.7.97
Sub: Imposition of Service Tax on Consulting Engineer and Manpower Recruitment Agency
The Trade is hereby informed that in exercise of the powers conferred by Section 88 of the Finance Act, 1997 (26 of 1997), the Central Government hereby appoints the 7th day of July, 1997, as the date on which the service tax on taxable services specified in sub-clauses (g) and (k), of clause (41) of section 65 of the Finance Act, 1994 (32 of 1994) shall come into force.
COMMISSIONER CENTRAL EXCISE,
Authority: Notification No. 23/97 dt. 2.7.97
C.NO. CE-20/41/ST/Trade Notice/97 Dated: 4.7.97
TRADE NOTICE NO. 52 CE (SERVICE TAX)/97
Sub: Imposition of Service Tax on Consulting Engineer and Manpower Recruitment Agency
The Trade is hereby informed that in exercise of the powers conferred by Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government being satisfied that it is necessary in the public interest so to do, hereby fully exempts from the levy of service tax, the value of taxable service rendered by a consulting engineer to a client in respect of any project based in a foreign country subject to the condition that the charges for such services are received in convertible foreign exchange.
COMMISSIONER CENTRAL EXCISE,
Authority: Notification No. 25/97 dt. 2.7.97
CENTRAL EXCISE COMMISSIONERATE:
C.NO. CE-20/41/ST/Trade Notice/97 Dated: 4.7.97
TRADE NOTICE NO. 53 CE (SERVICE TAX)/97
Sub: Imposition of Service Tax on Consulting Engineer and Manpower Recruitment Agency - reg.
Attention of the Trade is invited to this office Trade Notice No. 50 to 52 (service Tax)/97 dated 4.7.97 through which it has been informed about the imposition of service tax on the services rendered by Consulting Engineering and Man Power Recruitment Agency w.e.f. 7th July, 1997 in terms of Notification 23/97 to 25/97-ST dated 2.7.97- Govt. of India, Ministry of Finance, Department of Revenue.
2. It is felt that some clarification in respect of these two services for guidance of Public/Trade would be beneficial/use to Trade, Industry and Public.
3. MANPOWER RECRUITMENT AGENCIES:
3.1 As per Section 88 of the Finance Act, 1997 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. The taxable service rendered by a manpower recruitment agency is defined as any service provided to a client, by a manpower recruitment agency in relation to the recruitment of manpower in any manner. The rate of service tax is 5% and the value of taxable service in relation to service provided by a manpower recruitment agency to a client shall be the gross amount charged by such agency from the client in relation to the recruitment of manpower in any manner.
3.2 It would be pertinent to note that the coverage of the term manpower recruitment agency is wide and shall include within its ambit the services provided by an agency from the primary stage of building a database of manpower for different categories of personnel employment, whether white collar or blue collar, whether for employment in India or overseas; determining manpower requirement for the client, preliminary identification, short listing and screening of prospective candidates, providing specialists for interviewing prospective candidates, arranging for their interviews at each stage; placing advertisements for recruitment of manpower in the print or electronic media etc. In short, service tax on manpower recruitment agency shall cover within its fold the entire gamut of services provided by a manpower recruitment agency to a client from the incipient stage of selecting/identifying man-power required for any prospective employment, till the stage of actual selection for the same. It may be noted that in certain cases such as where a person approaches a manpower requirement agency for being employed in a suitable position abroad, as normally happens in case of employment in Gulf countries, the prospective candidate for employment become the client for purposes of service tax.
3.3 Service Tax on manpower recruitment agencies shall be the gross amount charged to the client for services rendered in relation to the recruitment of manpower excluding the amount incurred by the manpower recruitment agency on behalf of the client towards expenses which are reimbursed on actual basis. The Commissioners may selectively, in doubtful cases require the manpower recruitment agency to substantiate such actual expenses on the basis of doumentary evidence. In case the manpower recruitment agency is billing the client on the basis of a lump sum, any deductions from the same on account of reimbursible expenses, for the purposes of determining the value of taxable service may be permitted on the basis of documentary evidence adduced by the agency.
3.4 Normally the manpower recruitment agency receives remuneration from the client for the services rendered by him as per the stipulations in the contract/agreement between them. The payment from the client is received at different stages, based on the completion of work/service at each stage. The manpower recruitment agency shall be required to pay service tax on the payments received at each stage from the client by the 15th of the succeeding month. Subsequent modifications, if any, in the bills raised to the client at the time of final payment may be allowed after verification.
4. CONSULTING ENGINEERS
4.1 Consulting Engineer means any professionally qualified engineer or engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one more discipline of engineering. The taxable service rendered by a consulting engineer means any service provided to a client, by a technical assistance in any manner in one or more disciplines of engineering. The rate of service tax is 5% and the value of taxable service in relation to service provided by a consulting engineer to a client shall be the gross amount charged by such engineer from the client for advice, consultancy or technical assistance in any manner in one or more discipline of engineering.
4.2 Consulting engineers shall include self-employed professionally qualified engineer who may or may not have employed others to assist him or it could be an engineering firm - whether organised as a sole-proprietorship-partnership, a private or a public Ltd., Company.
4.3 The services which attract the levy include all the services which are rendered in the capacity of a professional person and specifically include the services pertaining to structural engineering works civil/mechanical/electrical engineering works or relating to construction management. All services rendered within the above scope of the term engineering attract service tax provided they are rendered in the capacity of a consulting engineer. The scope of the services of a consultant may include any on or more of the following categories:
(i) Feasibility
study.
(ii) Pre-design services/project.
(iii) Basic design engineering.
(iv) Detailed design engineering.
(v) Procurement.
(vi) Construction supervision & project management.
(vii) Supervision of commissioning and initial operation.
(viii) Manpower planning and training.
(ix) Post-operation and management.
(x) Trouble shooting and technical services, including
establishing systems and procedures for an existing plant.
Though the above list is not
exhaustive, it illustrates the wide scope and nature of the services rendered
by a consulting engineer.
4.4 The services should be rendered to a client directly, and not in the capacity of a sub-consultant associate consultant to another consulting engineer, who is the prime consultant. In case services are rendered to the prime consultant, the levy service tax does not fall on the sub-consultant, the levy service tax does not fall on the sub-consultant but is on the prime of main consulting engineer who raises a bill on his client (which include the charge for services rendered by the sub-consultant).
4.5 As in the case of manpower recruitment agencies service tax on consulting engineers shall be the gross amount charged to the client for services rendered in relation to the recruitment of manpower excluding the amount incurred in the manpower recruitment agency on behalf of the client towards expenses which are reimbursed on actual basis an in case the client is titled on a lump sum basis any deduction from the same on account of reimbursible expenses, for the purpose on the basis of documentary evidence adduced by the agency.
4.6 Normally the consulting engineer receives remuneration from the client for the services rendered by him as per the stipulations in the contract/agreement between them. The payment from the client is received at different stages based on the completion of work at each stage. The consulting engineer shall be required to pay service tax on the payments received at each stage from the client by the 15th of the succeeding month. subsequent modification, if any, in the bills raised to the client at the time of final payment may be allowed after verification.
4.7 The services rendered by a consulting engineer on overseas projects shall be fully exempted from payment of service tax provided it is received in convertible foreign exchange (Notification No. 22/97-ST dated 2.7.97 refers).
5. GENERAL
5.1 As per section 69 of the Finance act, 1994, read with rule 3 and 4 of the Service Tax Rules, 1994, every person responsible for collecting the service tax is required to be registered with the concerned Central Excise Officer appointed under rule 3. Notification No. 24/97-Service Tax, dated 2/7/97 amends rule 2 of the said rules so as to prescribe that the person responsible for collecting the service tax in relation to the services provided by a manpower recruitment agency shall be the agency which raises the bill for services rendered to a client and the person responsible for collecting the service tax in relation to the services provided by a consulting engineer shall be the consulting engineer who raises the bill for services rendered to a client.
5.2 Rules relating to service tax on other services have already been notified and the trade is advised to go through them. However, for the benefit of the services which are to be covered by the Notification No. 23/97 to 25/97-ST, Services Tax dated 2.7.97, the procedures to be followed for registration, maintenance of documents, filing of returns and the manner in which the service tax is to be paid and which were contained in chapter V of the Finance Act, 1994, notified to the trade vide this Commissionerate Trade Notice No. 46-CE (Misc 46)/94 dt. 7.7.94 are reproduced along with annexures as amended from time to time and by the Finance Act, 1997.
REGISTRATION
5.4 The
assessees will apply for registration in form ST-1 (Annexure-I). An
acknowledgement will be provided on the duplicate copy of the ST-1 form by the
Superintendent of Central Excise (Service Tax) in Room No. 254, CR Building,
I.P. Estate,
5.5 Payment of Service Tax
Rule 6 of the Service Tax Rules, 1994, deals with the payment of Service Tax. The Service tax will be deposited under Head 0044, in form TR-6 in yellow colour as amended vide Service Tax Circular No. 17/11/96 dated 24.10.96 (a copy of which is enclosed as Annexure-II) in any of the bank branches, at present authorised to collect central Excise Duties within the jurisdiction of commissionerate of Central Excise, Delhi. A list of such branches alongwith the codes Nos. (Annexure-III) is enclosed. It is to be noted that each assessee shall choose only one branch convenient to him and all payment shall be made in that branch only.
5.6 The concept of provisional assessment has been built into the scheme of Service Tax Rules. Whenever an assessee, for any reason, unable to correctly estimate on the date of deposit, the actual amounts collected for any particular month of period, the assessee may make a request in writing to the Assistant commissioner of Central Excise (Service Tax), CR Building, I.P. Estate, New Delhi to make a provisional assessment of the tax on the basis of the amount desposited. The said Central Excise Officer will, on receipt of such request, order provisional assessment of tax. In this regard, the provisions of Central Excise Rules, 1944, have been made applicable. However, there is no requirement to enter into a bond in respect of service tax.
5.7 The assessee will file quarterly return in Form ST-3 as amended vide notification No. 15/97 dated 25.4.97 in (Annexure-IV) in triplicate. In respect of provisional assessment, the assessee is required to submit a memorandum in Form ST-3A (Annexure-V) showing details of difference between the service tax deposited and the service tax actually collected for each month. The assessee shall submit quarterly return alongwith the copy each of the form TR-6 for the month covered in the quarter.
5.8 The assessment shall be completed on the basis of the particulars furnished in the quarterly return ST-3 and ST-3A, by the said Central Excise Officer. The triplicate copy of the quarterly return so assessed shall be returned to the assessee with assessment memorandum. In cases where the service tax assessed is more than the service tax self determined and paid by the assessee, the assessee shall pay the deficiency alongwith the amount of interest determined thereon within 10 days of the receipt of the copy of the quarterly return from the Central Excise Officer. The assessee may apply for refund, whenever he has paid service tax in excess of tax assessed, in accordance with the provisions of section 11-B of the Central Excise Act, 1994.
Appellate Mechanism
6. Appellate mechanism provided in Central Excise Act, 1944 has been made applicable to Service Tax with some modifications (Section 85 and Sec. 86) of Finance Act, 1994 may be referred to).
7. ADMINISTRATIVE MACHINERY FOR COLLECTIO OF SERVICE TAX
(1) A service tax
cell has been created in the headquarters office of the Commissionerate of
Central Excise,
The Assistant Commissioner of Central Excise
(Service Tax Cell)
Commissionerate of Central
Excise, Delhi
Room No. 116, C.R. Building, I.P.
Estate,
New Delhi-2
Tel. No. 3722048 & EAPBX
3317741, 43 Ext. 320, 310, 376
The trade is advised to send
all correspondences,
applications for registration,
returns etc. to the above address.
2. The trade may please note that:
a) Application for registration in form ST-I received from the assessee shall be acknowledged by an officer of the rank of Superintendent of Central Excise.
b) Certificate of registration in the form ST-2 will be issued under the name and signature of the Assistant Commissioner.
c) The Service Tax collected during any calendar month by the Assessee under Sub-section (1) of Section 68 of the Finance Act, 1994 shall be paid to the credit of Central Government in form TR-6 by the 15th of the following month.
d) Any person, responsible for collecting the Service Tax, who fails to collect the Tax in accordance with the provisions of sub-section (II), shall not withstanding such failure be liable to pay such tax to the credit of the Central Government within SEVENTY FIVE DAYS from the end of the month in which the service was rendered.
e) Quarterly Return filed by the assessee (para 4.7 above) will be assessed by the Superintendent of Central Excise (Service Tax).
f) For the purpose of provisional assessment whenever the Asstt. Commissioner will make an order for provisional assessment for the tax, on request being received in writing from the Assessee.
g) The powers of Assessment under Section 72, 73, 74 of Chapter V of the Finance Act, 1994 dealing with best judgment Assessment, value of taxable service, escaping assessment, rectification of mistake will be exercised by the Asstt. Commissioner. In respect of Assessment periods of 5 years or more referred in Section 73 of the Finance Act, 1994 (32 of 1994) Commissioner will be competent authority to exercise the powers.
Sd/-
CENTRAL EXCISE-I,
NOTIFICATION
OFFICE OF THE COMMISSIONER OF
CENTRAL EXCISE
MUMBAI-I
115,
(SERVICE TAX CELL)
TRADE NOTICE NO. 6/97-SERVICE TAX DT. 1.7.97
SUBJECT: Imposition of service tax on services rendered by Mandap keeper and by an Air Travel Agents reg.
1. Attention of the Trade/Public and all concerned, is invited to Section 88 of the Finance Act, 1997 which provides interalia for levy of service tax on services rendered by Mandap these services will come into force from 1.7.97 (Notification No. 19/97-Service Tax dt. 26.6.97 referred) Notification 20/97-Service Tax dated 26.6.97 has been issued to define the person responsible for collecting the Service Tax in relation to Air Travel Agents and Mandap keepers.
2. MANDAP KEEPERS
In the context of these two services, certain points have been raised for clarification which are discussed below:
2.1 As per clause (19) of Section 65 of the Finance Act, 1994, "Mandap" means any immovable property as defined in Section 3 of the Transfer of Property Act, 1882 and includes any furniture, fixtures, light fittings and floor coverings therein, let out for consideration for organising any official, social or business function. "Mandap Keepers" has been defined as " a person who allows temporary occupation of a mandap for consideration for organising any official, social or business function". It may kindly be noted that the definition of mandap is very wide in its coverage and covers all immovable properties let out for organising social, official or business function. It includes within its scope places like kalyana mandaps or marriage halls, banquet halls, conference halls, etc. Hotels and restaurants providing any such facility within their premises for organising any social, official or business function shall also be obviously included in the coverage of service tax. Therefore, the levy of the service tax will apply in all these cases.
2.2 The taxable service has been defined as services rendered to a client by 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 services, if any rendered as a caterer and the value of the taxable service means the gross amount charged by the mandap including the facilities provided to the client in relation to such use and also the charges for catering, if any.
2.3 A number of points have been raised by the associations representing mandap keepers with respect to the levy of service tax on their activities. These are discussed in the ensuing paragraphs.
2.4 The person responsible for collecting the service tax will be "mandap keeper". The service tax would fall not only on the hire charges for the mandap but also charges for electricity, whether on actual basis or otherwise, charged to the customer. therefore, it may be ensured that the tax is collected on the whole amount even if separate bills are issued one for the rental and the other for electricity charges. The mandap keeper may also bill the client for other services rendered by him such as charges for providing furniture, fixtures, lighting fittings, vessels, crockery, cutlery, etc. all these charges are includible in the value of taxable service for the levy of service tax.
2.5 Where a mandap keeper also provides catering services, that in supply of food, in addition to the letting out of the mandap and charges the customer for supply of food, and abatement of 40% of the total amount charged has been provided while computing the value of the taxable service. This will be deemed to be the value of taxable service in such cases. In other words, service tax will be leviable on 60% of the total amount billed in such cases (vide notification No. 21/97-Service Tax, dated 26th June, 97). This mainly happens in the case of hotels, clubs etc.
2.6 Sometimes it may happen that the booking made for the mandap is subsequently cancelled. In such cases, the question of levying service tax does not arise as no service has been rendered. It may kindly be noted that the tax has to be paid not at the time of booking of the mandap but when the service is actually rendered and the bill raised by the mandap keeper to the client.
2.7 It may also be noted that in view of the definition of mandap as discussed in para 2.1 above, even if the mandap is located or situated within the premises of any public place of worship such as temple, church, etc. and charges are collected for letting out of the mandap, the tax would be applicable.
3. AIR TRAVEL AGENTS
3.1 As regards the services rendered by air travel agents, the person responsible for collecting the services tax will be the air travel agents and the measure of the tax is the commission received by the air travel agent from the air lines for booking of air tickets.
3.2 It is understood that the air travel agents receive certain commission for domestic tickets and for international tickets from the airlines. The details of the commissions payable by the air lines is indicated in the agency agreement entered into between the air line and the air travel agent. the travel agent files a fortnightly return to the airlines indicating the details of tickets booked, the fare collected the commission earned along with other particulars. After the commission earned along with other particulars. After adjusting the commission, he remits the balance amount to the air lines. This fortnightly return could be made the basis for assessment of service tax in respect of air travel agents.
3.3 However, an option is also being provided to the air travel agent to pay the service tax at the rate of 0.25% of the basic fare in the acse of domestic tickets and 0.5% of the basic fare in the case of international tickets towards discharge of his service tax liablity instead of paying the tax @ 5% on the actual commission received from the air lines. (Notification No. 20/97-ST refers). Basic fare is defined as that part of the fare on which commission is payable by the air lines.
3.4 Cancellation or modification of tickets is a very common and frequent feature in air travel. The air travel agent in his fortnightly return gives the particulars of tickets cancelled or modified and adjusts the commission accordingly subject to final approval by the airlines. Since the commission is adjusted automatically and the service tax is paid on the net commission received, the question of separately claiming refund of service tax may not arise. However, care may be taken to ensure that no adjustment of Commission for the period prior to 1st July, 1997 (when no service tax was leviable) is done from the commission payable from 1st July, 1997 onwards leading to escapement of service tax on the services rendered from 1st July.
4. GENERAL
4.1 As per section 69 of the Finance Act, 1994 read with rule 3 and 4 of the Service Tax Rules, 1994, every person responsible for collecting the service tax is required to be registered with the concerned Central Excise Officer appointed under rule 3. Notification No. 20/97-Service Tax, dated 26.6.97 amends rule 2 of the said rules so as to prescribe that the person responsible for collecting the service tax in relation to the services provided by an air travel agent shall be the air travel agent who books the passage for travel by air for a customer and the person responsible for collecting the service tax in relation to the services provided by a mandap keeper shall be the mandap keeper who raises the bill for services rendered to a client.
4.2 Section 67(2) of the Finance Act, 1997 provides that the service tax collected during a month shall be deposited to the Governmnet account by the 15th of the succeeding month. Section 68(3) of the Finace Act, 1994 as amended, provides that a person responsible for collecting the service tax who fails to collect such tax shall be liable to pay the service tax to the Government within 75 days from the close of the month in which their service was rendered. Section 76 further provides that in case of failure to pay the tax within the period of 75 days, the person responsible for collecting the service tax shall in addition to the tax and interest payable thereon be liable to pay a penalty.
4.3 Rules relating to levy of service tax on other services are already in existence. The procedure to be followed for the registration, maintenance or documents, filing of returns and manner in which the service tax is to be paid, is given below:
a). Registration
Every person in the jurisdiction of Mumbai-1 Central Excise
Commissionerate who is responsible for collecting the Service Tax shall make an
application to the Assistant Commissioner, Service Tax Cell,
When a registered assessee transfers his business to another person, the transferee shall obtain a fresh certificate of registration. When a registered assessee ceases to carry on the activity for which he is registered he shall surrender his registration certificate immediately to the Central Excise authorities.
b). Payment of Service Tax
The Service tax collected during any calender month shall be paid to the credit of the Central Government by 15th or the following month in form TR-6 challan (yellow colour). For e.g. for the month of June 1997, it should be credited latest by 15th of July 1997. The head of account for the above two services will be intimated shortly. The amount of Service Tax be paid into the U.B.I. The list of authorised branches with Code Nos. is enclosed.
Any person responsible for collecting the service tax who fails to collect the tax shall. notwithstanding such failure, be liable to pay such tax to the credit of the Central Govt. Within 75 days from the end of the month in which the service was rendered.
c). Interest on Delayed Payment of Service Tax
If any person fails to pay or credit the Service Tax or any part thereof in time, he shall pay simple interest @ 1.5% for every month or part of a month ny which such payment/crediting of the tax or any part thereof is delayed.
d). Filing of Quarterly Return
A quarterly return in Form ST-3 (in triplicate) should be filed within 15 days of the end of the preceding quarter i.e. latest by 15th July, 15th October, 15th January and 15th April for the quarters ending June, September, December and March respectively.
e). Penalty for failure to collect or pay Service Tax
(i) If any person responsible for collecting Service Tax fails to collect such tax, he shall be penalized a sum equal to the amount of Service Tax which he failed to collect, besides paying the actual amount of tax and the interest thereon.
(ii) If any person, fails to pay the Service Tax to the credit of the Central Govt. in time after having collected the service tax, he shall pay a penalty of Rs. 100/- which may extend to Rs. 200/- per day during which such failure continues, besides paying the actual service tax and the interest thereon, However, the penalty in this case shall not exceed the amount of Service Tax that he failed to pay.
Note: the amount of Service Tax collected should be separately shown on the invoice for the service provided.
f). Penalty for failure to furnish the Quarterly Return
If a person fails to furnish the Quarterly Return (including "Nil" return) in Form ST-3 in time.i.e. by 15th July, 15th October, 15th January and 15th April for the quarters ending June, September, December and March respectively, he shall be penalized a sum of Rs. 100/- extendable to Rs. 200/- for every day during which the failure continues.
g). Penalty for suppressing value of taxable service
If any person is found concealing or suppressing the value of taxable service or has furnished inaccurate value, etc., such person shall be penalised a sum upto twice the amount of service tax sought to be evaded by reasons of suppression, concealment, etc. besides paying the actual service tax and interest, if any.
Apart from the above penalties, persons committing offences under Chapter V of the Finance Act, 1994 would also be liable to prosecution in certain cases.
h). Records
Every assessee shall furnish to the Central Excise Officer at the time of filing his quarterly return for the first time a list of all accounts maintained by the assessee in relation to service tax including memoranda received from his branch offices.
5. The following Annexures are enclosed
with this Trade Notice for the information of the tax-payers.
|
Annexure No. |
Particulars |
|
I |
Form ST-1 |
|
II |
Form TR-6 |
|
III |
Form ST-3 |
|
IV |
List of branches of U.B.I. with
code Nos. |
6. For further information, the Assistant commissioner, Service
Tax Cell, can be contacted on 6th floor, New Central
Excise Building, 115,
7. Associations of the Air Travel Agents and Mandap Keepers are requested to bring the above contents to the notice of their members.
Sd/-
02.07.97
(N. KRISHNAMURTY)
COMMISSIONER
CENTRAL EXCISE,
MUMBAI-I
ATTESTED
(B.K. SAKSENA)
ASSISTANT COMMISSIONER
SERVICE TAX CELL,
CENTRAL EXCISE,
MUMBAI-I
F.No. V(30)
STC/15-55/97
Mumbai, the July 1997.
(Based on Ministry letter
F.No.B 43/3/97-TRU dt. 26.6.97
Copy to :
As usual