Budget Highlights-2012_service Tax

7/30/2019 Budget Highlights-2012_service Tax

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Budget Highlights 1.1

HIGHLIGHTS OF FINANCE BILL, 2012

A. Provisions made applicable Retrospectively

1. Services provided by a Club or AssociationNotification no. 42 /2011 dated 25.07.2011 provided retrospective exemption to an association ofdyeing units setting up a common facility for treatment and recycling of effluents and solid wastesfrom the payment of service tax. The scope of said exemption has now been widened vide notificationno. 1/2012 dated 17.03.2012 to all the associations and registered cooperative societies setting up acommon facility for treatment and recycling of effluents and solid wastes.

B. Provisions Applicable w.e.f 01.04.2012

1. Increase in Rate of TaxAt present, service tax is levied at the rate of 10.3% on all the taxable services. The said rate of tax cameinto force w.e.f.24.02.2009. Notification No. 8/2009 dated 24.02.2009 granted exemption to service taxas in excess of the rate of 10% leviable on all the taxable services thereby reduced the rate of taxprescribed under section 66 of Finance Act 1994 i.e. the rate of 12.36% got reduced to 10.3%.Notification no. 2/2012 dated 17.03.2012 has rescinded the aforementioned exemption notificationw.e.f. 01.04.2012. Hence, the rate of tax will get increased to 12.36%.

Consequential changes has also been made in respect to rate of tax in Service Tax Rules 1994 andWorks Contract (Composition Scheme of Payment of Service Tax) Rules 2007. Accordingly theincreased rate of tax will become payable for the following services for which special rate of tax hasbeen prescribed with effect from 01.04.2012.

Taxable Service Rate of Tax

Services In Execution of Works Contract 4.8%Money Changer Services

Up to Rs. 1,00,000/- subject to the minimumamount of Rs. 30/-

0.12% of the gross amount of currency exchanged,subject to minimum amount of Rs.30/-

An amount exceeding Rs. 1,00,000/- and upto Rs.10,00,000

120/- [calculated @ 0.12% on first Rs.1,00,000] plus0.06%[ on the remaining balance]of the grossamount of currency exchanged

An amount exceeding Rs. 10,00,000/- Rs. 660[calculated on first Rs.10,00,000 as per abovesecond slab] plus 0.012% [on the remainingbalance]of the gross amount of currency exchanged,subject to maximum amount of Rs.6,000/-

Distributor or Selling Agent of Lotteries

If the lottery or lottery scheme is one where

guaranteed prize payout is more than 80%

Rs. 7,000/- on every Rs.10 lakh (or part of Rs.10

Lakh) of aggregate face value of lottery ticketsprinted by the organizing State for a draw

If the lottery or lottery scheme is one whereguaranteed prize payout is less than 80%

Rs. 11,000/- on every Rs. 10 lakh (or part of Rs. 10Lakh) of aggregate face value of lottery tickets printed by the organizing State for a draw



1.2 Service Tax Law & Procedure

The special rate of tax payable in respect life insurance services has also been increased from 1.5 % to 3% in respect to first year premium charged from policy holders and in all subsequent years, the rate oftax will be 1.5%.

2. Amendment in Service Tax Rulesi. Issuance of Invoice (Rule 4A)Wherein under Rule 4A the earlier requirement for a Service Provider was to issue an invoice within14 days of• Completion of Service or,• Any payment received against such taxable serviceThe prescribed time limit of 14 days has been extended to 30 days. Consequential amendment hasbeen made in Point of Taxation Rules 2011.Two new provisos will be inserted to Rule 4A of Service Tax Rules 1994 w.e.f. 01.04.2012. The first newproviso stipulates that in case service provider provides any service in relation to Banking or otherFinancial Services the time limit within which the invoice has to be issued shall be 45 days. The secondproviso stipulates where the provider of service receives an amount up to Rs: 1000/- in excess of theamount as indicated in the invoice, no supplementary invoice is required to be issued. However such

relaxation is subject to the fact that the service provider has determined its liability on the basis ofPoint of Taxation Rules 2011.

ii. Payment of Service Tax (Rule 6)Two new provisos will be inserted to Rule 6 of Service Tax Rules 1994 w.e.f. 01.04.2012. The two newprovisos stipulates as under :

a) An Exporter of Service has been absolved from the obligation to pay its Service Tax liability

by the 5/6th of the following month/ quarter in which the service is provided if the payment

in lieu of Export of such services is received within the period as prescribed by R.B.I.

b) Individuals and Partnership firms whose aggregate value of taxable services provided from

all the premises does not exceed Rs 50 Lacs in the preceding financial year, such assessees

have an option to discharge its service tax liability on payment basis. Such benefit shall beavailable only up to the point where the gross amount of services provided by such service

provider does not exceed Rs 50 lacs.

iii. Self Adjustment of Excess tax Paid (Rule 6(4B))All the conditions prescribed for adjustment of any excess amount paid as Service Tax have beensubstituted with only one condition that such excess amount paid should not be on the followingreasons:-• Involving Interpretation of Law,• Taxability,• Classification,• Valuation or,• Applicability of any exemption notification.

3. Changes in Point of Taxation Rulesi. Insertion of Definition of “Change in effective rate of tax”:-(ba) “change in effective rate of tax” shall include a change in the portion of value on which tax ispayable in terms of a notification issued in the Official Gazette under the provisions of the Act, or rulesmade there under;




The explanation appended to Rule 4 of Point of Taxation Rules, 2011 defining the Change in Effectiverate of Tax has been incorporated in definition clause and such explanation has been omitted.

Amendment in definition of “Continuous Supply of Service”:-

As per the current definition of “Continuous Supply of Service”, it means any service which isprovided, or to be provided continuously, under a contract, for a period exceeding three months andincludes services specifically notified by Central Government which are deemed to be in ContinuousSupply. Presently following services have been notified by Central Government vide Notification No28/2011 dated 01.04.2011 as services deemed to be in Continuous Supply:

(i) Commercial or Industrial Construction Services [Section 65(105)(zzq](ii) Complex Construction Services [Section 65(105)(zzzh)](iii) Telecommunication Services [Section 65(105)(zzzx)](iv) Internet Telecommunication Services [Section 65(105)(zzzv](v) Services in Execution of Works Contract [Section 65(105)(zzzza)]

Notification no. 4/2012 dated 17.03.2012 has amended the definition of Continuous Supply of Service.

As per current position, the term “Continuously” is generally misunderstood as the service whichtakes more than three months for completion. However, with the insertion of the words “or onrecurrent basis”, it has been clarified that even if same service is provided repeatedly under thecontract for a period exceeding three months in such a case same will be considered as “ContinuousSupply of Service”.

In addition to the above, another condition has been inserted in the definition of continuous supply ofservice. The new condition is as under

“with the obligation for payment periodically or from time to time,”.

New Rule regarding Date of Payment has been Introduced:After Rule 2 of Point of Taxation Rules, 2011, Rule 2A has been inserted which defines the “Date of

Payment” for the purpose of these Rules.As per said Rule “Date of Payment” shall be the:-

Date on which payment is entered in books of accounts

Or

Date of crediting of payment to the bank account of person liable to pay Tax

Whichever is earlier.However in the following situation, ‘Date of payment’ shall be the date of credit in the bank accountirrespective of the date of entry in the books of accounts:

there is a change in effective rate of tax or when a service is taxed for the first time, during the

period between such entry in books of accounts and its credit in the bank account;

and

the credit in the bank account is after four working days from the date when there is change

in effective rate of tax or a service is taxed for the first time;




and

the payment is made by way of an instrument which is credited to a bank account,

Amendment in Determination of Point of Taxation (Rule 3):-Following provisos are being inserted in the Rule 3 after clause (b),:

(i) In case of continuous supply of service where the provision of the whole or part of theservice is determined periodically on the completion of an event in terms of a contract,which requires the receiver of service to make any payment to service provider, the date ofcompletion of each such event as specified in the contract shall be deemed to be the date ofcompletion of provision of service;

(ii) Wherever the provider of taxable service receives a payment up to rupees one thousand inexcess of the amount indicated in the invoice, the point of taxation to the extent of suchexcess amount, at the option of the provider of taxable service, shall be determined inaccordance with the provisions of clause (a).

The first proviso is nothing but is the explanation which was firstly appended to the Rule 6 ofPoint of Taxation Rules, 2011. There is no difference in the Rule 3 and Rule 6 of Point of TaxationRules, 2011 except this explanation. Now this explanation has been incorporated in Rule 3 itself byway of proviso. Consequently, Rule 6 of Point of Taxation Rules, 2011 has been omitted.

The second proviso has been newly inserted in the Rule 3 of Point of Taxation Rules, 2011. As perthis proviso if a Service Provider receives payment up to Rs 1,000 in excess of the amountspecified in the invoice, in that case Service provider has an option to pay tax as per the provisionsof Clause (a) of said rule.

This amendment is also in nature of Consequential amendment as in Rule 4A of Service Tax Rules afifth proviso has been inserted vide which if a Service provider receives excess payment upto rupeesone thousand in excess of the value indicated in the invoice and opt for payment of Service Tax as per

the provisions of Point of Taxation Rules, in that case it is not required to issue for the said excessamount. Thus, this provision, to an extent, provides relaxation from issuance of invoice for smallamounts in case some excess payment is received against that invoice.

Amendment in respect to Payment of Tax in cases of New Services (Rule 5)Current Position:-Presently Rule 5 reads as under:

“5. Payment of tax in cases of new services.-

Where a service, not being a service covered by rule 6 , is taxed for the first time, then, –

(a) no tax shall be payable to the extent the invoice has been issued and the payment received against suchinvoice before such service became taxable;

(b) no tax shall be payable if the payment has been received before the service becomes taxable and invoice hasbeen issued within the period referred to in rule 4A of the Service Tax Rules, 1994”.

New Position:

Rule 5 has been substituted with the following new Rule:




“5. Payment of tax in case of new services.—

Where a service is taxed for the first time, then,—

(a) no tax shall be payable to the extent the invoice has been issued and the payment received against suchinvoice before such service became taxable;

(b) no tax shall be payable if the payment has been received before the service becomes taxable and invoice hasbeen issued within fourteen days of the date when the service is taxed for the first time .”.

It is apparently clear from the aforesaid provisions that there are two major differences in the bothNew Rule 5 and Rule 5 which is to be substituted. These have been discussed as under:

(1) Omission of words “not being a service covered by rule 6”:

Since, Rule 6 itself has been omitted; these words are of no significance in this Rule.

(2) Substitution of words “issued within the period referred to in rule 4A of the Service Tax Rules, 1994”with “issued within fourteen days of the date when the service is taxed for the first time”

Time limit for issuance of invoice has been increased in Rule 4A of Service Tax Rules,2011(from fourteen days to thirty days), accordingly this amendment is brought out in orderto secure the interests of revenue. Higher the time period for issuance of invoice, higher willbe the scope of fraud by the assessees.

Rule 7 regarding Specified Services or Persons Amended:

A new Rule 7 has been substituted in place of the old Rule 7. As per Current Rule, notwithstanding

anything contained in Point of taxation Rules, 2011, the point of taxation in respect of followingServices is the date of payment or receipt as the case may be:

(a) The services covered by sub-rule (1) of rule 3 of Export of Services Rules, 2005;

(b) The persons required to pay tax as recipients under the rules made in this regard in respect ofservices notified under sub-section (2) of section 68 of the Finance Act, 1994;

(C) Consulting Engineer’s Service [65 (105)(g)]

(D) Architect’s Services [65 (105)(p)]

(E) Interior Decorator’s Service [65 (105)(q)]

(F) Chartered Accountant Service [65 (105)(s)]

(G) Cost Accountant Service [65 (105)(t)]

(H) Company Secretary Service [65 (105)(u)]

(I) Scientific and Technical consultancy [65 (105)(za)]




(J) Legal Consultancy Service [65 (105)(zzzzm)]

However, as per substituted Rule 7, only for the persons who are required to pay tax as recipients ofservice under the rules made in this regard in respect of services notified under sub-section (2) of

section 68 of the Act, point of taxation shall be the date of Payment.

Determination of Point of Taxation on the basis of Best Judgment:

A new Rule 8A has been inserted in Point of Taxation Rules, 2011 which reads as under:

“8A. Determination of point of taxation in other cases.-

Where the point of taxation cannot be determined as per these rules as the date of invoice or the dateof payment or both are not available, the Central Excise officer, may, require the concerned person toproduce such accounts, documents or other evidence as he may deem necessary and after taking intoaccount such material and the effective rate of tax prevalent at different points of time, shall, by an

order in writing, after giving an opportunity of being heard, determine the point of taxation to thebest of his judgment.”.

As per aforesaid Rule, if point of taxation cannot be determined due to any reason in that caseCentral Excise Officer has the authority to determine point of taxation as per his Best Judgment afterconsidering the records produced by the concerned person and providing an opportunity of beingheard.

Exemption to Small Service ProviderConsequential amendment in the meaning of term “aggregate value” as a result of shift of taxabilityfrom payment basis to issuance of invoice vide notification 5/2012 dated 17.03.2012.

Transport of Passengers by AirExemption of 60% has been provided in respect to services provided by an aircraft in relation toscheduled or non-scheduled air transport vide notification no. 06/2012 dated 17.03.2012. With thisnotification, the dual tax structure for air transportation: partly specific, partly ad valorem is beingreplaced with a uniform ad-valorem levy at standard rate with an abatement of 60% on all sectors andall classes.

Transport of Goods by Rail Following three notifications has been issued for extending the exemptions/ provisions governingtaxability of “Transport of Goods by Rail” to 01.07.2012:

Notification No Purpose

7/2012 dated 17.03.2012 Exemption to goods transported in containrs by rail

8/2012 dated 17.03.2012 Exemption to specified goods

9/2012 dated 17.03.2012 Abatement of 70%




C. Provisions Applicable w.e.f date on which Proposed Section 66B is made Applicable

Amendment in Service Tax (Determination of Value) Rules, 2006Notification No. 11/2012 dated 17.3.2012 amended Service Tax (Determination of Value) Rules, 2006.

The amendment Rules shall come in to force on the date on which section 66B of the Finance Act, 1994comes in to effect.

Determination of Value in respect to Services in Execution of Works Contract (Rule 2A).Rule 2A of the erstwhile Rules has been substituted by new Clause 2A. New Rule 2A uses the words“in clause (8) of the section 66E of the Act” in place of words “in sub-clause (zzzza) of clause (105) ofsection 65 of the Act” used in erstwhile Rule 2A. Similarly, words “or sales tax as the case may be” hasbeen deleted from erstwhile Rule 2A(ii) and the same has been reframed as “clause (c)” under theexplanation to Rule 2A(i) in new amended Rules. New Rule 2A(ii) has been inserted stating that wherevalue has not been determined under clause (i), the person liable to pay tax on the taxable serviceinvolved in the execution of the works contract shall determine in the manner prescribed there.As per Rule 2A(ii), where value has not been determined under Rule 2A(i) same may be determined asunder:

(A) If work contract has been entered into for execution of “original works” then tax shall bepayable on 40% of “total amount” charged for the work contract. It is also provided that where

gross amount charged for execution of work contract includes the value of land tax shall be

payable on 25% of the total amount including such gross amount

(B) In case of other works contract including completion and finishing services not covered underClause (A) service tax shall be payable on 60% of the total amount charged for the workscontract.

Terms “original works” and “total amount” has been explained in explanation to Clause (B). “Originalworks” means all new construction and all types of additions and alterations to abandoned ordamaged structures on land that are required to make them workable. Similarly, “total amount”

means sum total of gross amount and the value of all goods (excluding the VAT tax paid, if any) andservices supplied free of cost for use in or in relation to the execution of works contract, under thesame contract or any other contract. For a situation, where value of goods or services supplied free ofcost is not ascertainable, the same shall be determined on the basis of fair market value of the goods orservices that have closely available resemblance.

Determination of value of taxable service involved in supply of food and drinks in a restaurant oras outdoor catering.-

New Rule 2C has been inserted after erstwhile Rule 2B. New Rule 2C deals with determination ofvalue of taxable service involved in supply of food and drinks in a restaurant or as outdoor catering.Rule 2C states that, subject to Section 67 of the Finance Act, 1994, value of taxable service involved inthe supply of food or drinks for consumption in a restaurant shall be 40% of the total amount and if

provided as an outdoor caterer shall be 60% of the total amount. For the purpose of Rule 2C “totalamount” has been defined in explanation 1 to Rule 2C. “total amount” means the sum total of grossamount and the value of all goods (excluding the VAT tax paid, if any) and services supplied free ofcost for use in or in relation to supply of food or any other article of human consumption or any drink,under the same contract or any other contract. It is also provided that where value of goods or servicessupplied free of cost is not ascertainable, the same shall be determined on the basis of fair market value




of the goods or services that have closely available resemblance. Explanation 2 to Rule 2C states thatany goods mentioned under chapter 1 to 22 of the CETA, 1985 mean for human consumption shall notbe considered as “input” for service portion in an activity wherein goods, being food or any otherarticle of human consumption or drink is supplied in any manner as part of activity.

Inclusions & exclusions in the Value of Taxable Service (Rule 6)

Under Rule 6 of the erstwhile Rules, under sub-rule (i) words “in any manner; and” in clause (viii) hasbeen substituted by words “in any manner”. A new inclusion in the value of taxable service namely“the amount realized as demurrage or by any other name whatever called for the provision of a service beyond the

period originally contracted or in any other manner relatable to the provision of service” has been added to thelist of inclusions.

Likewise a new exclusions namely1. Interest on-

(a) deposits; and

(b) delayed payment of any consideration for the provision of services or sale of goods; and

2. Accidental damages due to unforeseen actions not relatable to the provision of service. To the

list of exclusions from the value of taxable service.

Rule 7 of the erstwhile rules has also been omitted altogether by amendment Rules 2012.

Exemption NotificationsNotification no 12/2012 dated 17.03.2012 has granted exemption to specified services and specifiedservice providers/recipients

Abatement in respect of Certain Services.

Background

When providing any taxing provision, it has been a prime concern of the draftsmen that only suchamount be collected as tax as may be legitimately due. With regard to the same, once again thelegislature has attempted to specifically provide the value of taxable service in where there may be asubstantial amount involved which in general course of trade is not exigible to Service Tax.

Position prior to enactment of Finance Bill 2012:-Vide Notification No.1/2006-ST (as amended from time to time) dated 1/03/2006 a number ofabatements had already been provided, what needs to be specifically noted is that such notificationextended its benefit which had been specified in the relevant sub clauses of clause (105) of Section 65of the Finance Act,1994.

Position after enactment of Finance Bill 2012:-But vide Finance Bill 2012 the government has made its intention clear that section 65 shall be

abolished and vide Section 66B all services other than those mentioned in the negative list shall beleviable to tax.

In view of such change i.e section 65 being abolished and new charging section 66B being brought in,the legislature has on parallel lines to the prior scenario brought in this notification where in only suchspecified percentage of total amount shall be exigible to Service Tax.




It is pertinent to mention here that though a the value leviable to Service Tax is higher than as

provided by the earlier notification, but still the ultimate burden of tax shall be much lower as at a

number of places any condition regarding non availment of CENVAT have not been provided.

For any further clarification you are requested to kindly pursue N.No. 03/2012 – ST dated 17/03/2012.

Service Tax Liability under Reverse Charge.

BackgroundNormally a service provider is liable to discharge/ deposit Service Tax to the credit of CentralGovernment. However in order to safeguard the revenue in certain situations the liability fordischarging Service Tax liability has been shifted to service recipients which is popularly known as‘Reverse charge Mechanism’.

Position prior to enactment of Finance Bill 2012:-Only following services used to fall within the ambit of Section 68(2) read with Rule 2(1)(d) of ServiceTax Rules, 2004.

• Goods Transport Agency

• General Insurance Business

• Insurance Auxiliary Service by an Insurance Agent

• Service Provided by a person from a country other than India.

• Business Auxiliary Service of Mutual Fund Distributor

• Sponsorship Service.

Position after enactment of Finance Bill 2012:-The scope of Reverse charge Mechanism has been enlarged by including within its ambit 10 Services intotal. Besides it is also worth mentioning that for the first time in respect of certain taxable servicesliability for payment of Service Tax has been is to be discharged both by the relevant Service provideras well as the Service Receiver.

The Services in relation to which both Service Recipient as well as the Service Provider are required todischarge Service Tax Liability in a specified proportion are as follows:-

Nature of Service Percentage of Service Taxpayable by ServiceProvider

Percentage of ServiceTax payable by ServiceRecipient

In relation to Services provided or agreedto be provided by way of renting or hiringany motor vehicle designed to carrypassenger on Non abated value

60% 40%

In respect of Services provided or agreed to

be provided by way of supply ofmanpower for any purpose

25% 75%

In respect of Services provided or agreed tobe provided by way of works contract

50% 50%




This mechanism of distribution of Service Tax between the Service Provider and Service Recipientshall only be applicable if such services are provided by any individual, Hindu Undivided Family,proprietary firm, partnership firm whether registered or not including association of persons, locatedin the taxable territory to any company.

In addition to the services specified in the table above the following services have also been addedvide Notification No. 15/2012 wherein service Tax is payable by the recipient of service. Theseinclude:a) Services provided or agreed to be provided by an Arbitral Tribunalb) Services provided or agreed to be provided by an Individual Advocatec) Services provided or agreed to be provided by way of support service by Government or local

body.******




AMENDMENTS IN FINANCE ACT, 1994

THE FINANCE BILL, 2012 HAS PROPOSED THE FOLLOWING AMENDMENTS INFINANCE ACT, 1994. THESE PROPOSALS SHALL BE MADE APPLICABLE ON ORAFTER THE ENACTMENT OF THE FINANCE BILL, 2012.

In the existing system, only the services specified in clause (105) of section 65 of the Finance Act, 1994are taxed under the charging section 66. In the new system, all services, other than services specified inthe negative list, provided or agreed to be provided in the taxable territory by a person to anotherwould be taxed under section 66B.Accordingly the following sections will became ineffective from the date as the Central Governmentmay notify:-

1. Section 65 – Definition of Taxable Service

2. Section 65A – Classification of Taxable service

3. Section 66 - Charge of Section Tax4. Section 66A – Charge of Service Tax on Services received from outside India

Since the above sections would be made ineffective, following new sections have been proposed to beinserted so as to govern the Service Tax Legislature:

1. Section 65B - Definitions

2. Section 66B – Charge of Service Tax

3. Section 66C – Determination of Place of Provision of Service

4. Section 66D- Negative list of Services

5. Section 66E – Declared services

6. Section 66F – Principles of interpretation of specified description of Services or bundled

Services

A. Under the new system, section 65B defines the relevant terms, words, phrases wherein some newdefinitions have been inserted, old definitions have been modified and few old definitions havebeen adopted

I) New Definition Inserted

-“India” as defined under Clause (27) of section 65B - means:-

a. the territory of the Union as referred to in clauses (2) and (3) of article 1 of the Constitution;b. its territorial waters, continental shelf, exclusive economic zone or any other maritime zone as defined

in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act,1976;

c. the seabed and the subsoil underlying the territorial waters;

d. the air space above its territory and territorial waters; ande. the installations, structures and vessels located in the continental shelf of India and the exclusive

economic zone of India, for the purposes of prospecting or extraction or production of mineral oil andnatural gas and supply thereof;




-“ Non Taxable territory” as defined under Clause (35) of section 65B - means the territory which isoutside the taxable territory.

-" Notification" as defined under Clause (36) of section 65B- - means notification published in the OfficialGazette and the expressions ‘‘notify’’ and "notified" shall be construed accordingly

-" Person" as defined under Clause (37) of section 65B - includes,––i. an individual,

ii. a Hindu undivided family,iii. a company,iv. a society,v. a limited liability partnership,

vi. a firm,vii. an association of persons or body of individuals, whether incorporated or not,

viii. Government,ix. a local authority, or x. every artificial juridical person, not falling within any of the preceding sub-clauses;

-“Prescribed “as defined under Clause (39) of section 65B similar to clause (86) to section 65 ofFinance Act, 1994

-"Taxable territory" as defined under Clause (52) of section 65B - means the territory to which the provisions of this Chapter apply.Territory – here means whole of India except the State of Jammu and Kashmir.

-“Service” as defined under clause 44 of Section 65B means:-“ any activity carried out by a person for another for consideration, and includes a declared service, butshall not include—

(a) an activity which constitutes merely,––(i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or

(ii) a transaction in money or actionable claim;

(b) a provision of service by an employee to the employer in the course of or in relation to hisemployment;

(c) fees taken in any Court or tribunal established under any law for the time being in force.

Explanation 1.— For the removal of doubts, it is hereby declared that nothing contained in this clauseshall apply to,––a) the functions performed by the Members of Parliament, Members of State Legislative,Members of

Panchayats, Members of Municipalities and Members of other local authorities who receive anyconsideration in performing the functions of that office as such member; or

b) the duties performed by any person who holds any post in pursuance of the provisions of theConstitution in that capacity; or

c) the duties performed by any person as a Chairperson or a Member or a Director in a bodyestablished by the Central Government or State Governments or local authority and who is notdeemed as an employee before the commencement of this section.

Explanation 2.–– For the purposes of this Chapter,—




a. an unincorporated association or a body of persons, as the case may be, and a member thereof shallbe treated as distinct persons;

b. an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons.

Explanation 3.— A person carrying on a business through a branch or agency or representationaloffice in any territory shall be treated as having an establishment in that territory”

II) Definition Modified

-“Business Entity” as defined under Clause (17) of section 65B - - means any person ordinarilycarrying out any activity relating to industry, commerce or any other business; However, as per the existing definition “Business Entity” includes an association of persons, bodyof individuals, company or firm but does not include an individual. - Section 65 (19b) of FinanceAct, 1994

-“Money” as defined under Clause (33) of section 65B:- means Indian legal tender, cheque, promissory

note, bill of exchange, letter of credit, draft, pay order, traveller cheque, money order, postal or electronicremittance or any such similar instrument when used as consideration to settle an obligation or exchangewith Indian legal tender of another denomination but shall not include any currency that is held for itsnumismatic value

Earlier, “Money” was defined vide Explanation (b) to section 67 of Finance Act, 1994 – The saiddefinition provided that ‘money’ includes any currency, cheque, promissory note, letter of credit,draft, pay order, travellers cheque, money order, postal remittance and other similar instrumentsbut does not include currency that is held for its numismatic value;

III) Definitions adopted from Section 65

Definition Section 65B Section 65

Appellate Tribunal Clause (10) clause (5)

Assessee Clause (12) clause (7) Associated enterprise Clause (13) clause (7b)

Authorised Dealer Clause (14) clause (8)

Board Clause (16) clause (13)

B. CHARGEBILITY OF SERVICE TAX TO BE GOVERNED BY SECTION 66B.

“There shall be levied a tax (hereinafter referred to as the service tax) at the rate of twelve per cent, onthe value of all services, other than those services specified in the negative list, provided or agreed to be

provided in the taxable territory by one person to another and collected in such manner as may be prescribed.”

Chargeability of Service tax is governed by Section 66 and now the same will governed by theproposed Section 66B. As per the provisions proposed under section 66B of the Act, a service shall bechargeable to tax if –

1. Provided or agreed to be provided by a person to another2. In the taxable territory and,




3. Not be specified in the negative list.

1. Provided or agreed to be provided

a. Provided- When services are actually provided orb. Agreed to be provided-

• Services which have only been agreed to be provided but are yet to be provided aretaxable

• Receipt of advances for services agreed to be provided become taxable before the actualprovision of service

• Advances that are retained by the service provider in the event of cancellation ofcontract of service by the service receiver become taxable as these representconsideration for a service that was agreed to be provided.

2. Provided in the taxable territoryTaxable territory has been defined in section 65B of the Act as the territory to which the Act

applies i.e the whole of territory of India other than the State of Jammu and Kashmir.

For this purpose, draft Place of Provision of Service Rules, 2012 have been made which willdetermine the place of provision of service depending on the nature and description of service.

3. Service should not be specified in the negative list.As per section 66B, to be a taxable service, a service should not be specified in the negative listunder section 66D of the Act.

C. DETERMINATION OF PLACE OF PROVISION OF SERVICE- SECTION 66C

“(1) The Central Government may, having regard to the nature and description of various services, by rulesmade in this regard, determine the place where such services are provided or deemed to have been provided

or agreed to be provided or deemed to have been agreed to be provided.

(2) Any rule made under sub-section (1) shall not be invalid merely on the ground that either the service provider or the service receiver or both are located at a place being outside the taxable territory.”

It is being proposed that the Government by exercising the powers vested in Section 66C, willintroduce The Place of Provision of Service Rules, 2012. These Rules are summarized as under:




S.No.

RelevantRule

Situations Place of Provision of Service

1. 3 On General basis Location of service receiver.

However if the location of theservice receiver is not available inthe ordinary course of business, thelocation of the service provider shallbe the place of provision.

2. 4 Performance based services:

a) Services provided in respect of goods thatare required to be made physicallyavailable by the service receiver to the

service provider

Proviso- when service are provided froma remote location by way of electronicmeans

Location at which the services areactually performed by serviceprovider

Location at which the goods aresituated at the time of provision ofservice.

b) Services provided in conjunction with thesupply of goods under another contract bythe service provider


c) Services provided entirely orpredominantly, in the ordinary course ofbusiness, in the physical presence of anindividual, represented either as theservice receiver or a person acting on

behalf of the receiver


3. 5 Immovable property based services Location of the immovable propertylocated or intended to be located.

4. 6 Event based services Location where the event is actuallyheld

5. 7 Multiple location based services Location of taxable territory wherethe greatest proportion of service isprovided.

6. 8 Where service provider and receiver arelocated in the taxable territory

Location of the service receiver

7. 9 For specified Services- Services provided by a banking

Company, Financial Inst, Non

Banking Financial Company- Telecommunication services- Online Information and database

access or retrieval services- Intermediary services- Services consisting of hiring of

means of transport, upto a periodof one month

Location of the service provider

8. 10 Goods Transportation Services Place of destination of goods .




The Place of Provision of Service Rules, 2012 will replace the existing Export of Services Rules, 2005and the Taxation of Services (Provided from outside India and received in India) Rules, 2006. Rule 5 ofthe Export Rules will be incorporated in Service Tax Rules, 1994.

D. CLASSIFICATION OF SERVICES- SECTION 66F

The newly inserted Section 66F is on the same lines as was Section 65A providing classification of

service.

Section 66F:(1) Unless otherwise specified, reference to a service (herein referred to as main service) shall not include

reference to a service which is used for providing main service.(2) Where a service is capable of differential treatment for any purpose based on its description, the most

specific description shall be preferred over a more general description.(3) Subject to the provisions of sub-section (2), the taxability of a bundled service shall be determined in the

following manner, namely:––(a) if various elements of such service are naturally bundled in the ordinary course of business, it

shall be treated as provision of the single service which gives such bundle its essential character;(b) if various elements of such service are not naturally bundled in the ordinary course of business,

it shall be treated as provision of the single service which results in highest liability of service

tax.Explanation.— For the purposes of sub-section (3), the expression "bundled service" means a bundle of

provision of various services wherein an element of provision of one service is combined with anelement or elements of provision of any other service or services”

Section 66F lays down the principles of interpretation of specified descriptions of services andbundled services. –

Although the negative list approach largely obviates the need for descriptions of services, suchdescriptions continue to exist in the following areas –

• In the negative list of services.

• In the declared list of services.

• In exemption notifications.

• In the proposed Place of Provision of Service Rules, 2012• In few other rules and notifications.

E. Section 67A has been introduced vide Finance Bill 2012.

However, for goods transportagency, the place of provision ofservice of shall be the location of theperson liable to pay tax.

9. 11 Passenger transport Services Place where the passenger embarkson the conveyance for a continuous journey

10. 12 Services provided on a board aconveyance

First Scheduled point of departure ofthat conveyance for the journey




Section 67A- Date of Determination of Service Tax, value of taxable service and rate ofexchangeSection 67A. The rate of service tax, value of a taxable service and rate of exchange, if any, shall be the rateof service tax or value of a taxable service or rate of exchange, as the case may be, in force or as applicable at

the time when the taxable service has been provided or agreed to be provided.Explanation.— For the purposes of this section, "rate of exchange" means the rate of exchange referred to inthe Explanation to section 14 of the Customs Act, 1962.';

This section specifies the time/date for determination of rate of tax, value of taxable service andrate of exchange for the taxable services which have been provided or agreed to have been beprovided by a person. It states that the rate of tax, value of taxable service and rate of exchangeshall be; the rate of tax, value of taxable service or rate of exchange, which was applicable whenthe services were provided or when the services were agreed to be provided by a person. AnExplanation to this section states the definition of rate of exchange as Section 14 of the CustomsAct.

"Rate of Exchange" under Section 14 of the Customs Act means the rate of exchange -

(i) determined by the Board, or

(ii) ascertained in such manner as the Board may direct,

for the conversion of Indian currency into foreign currency or foreign currency into Indiancurrency;

(b) "foreign currency" and "Indian currency" have the meanings respectively assigned to them inclause (m) and clause (q) of section 2 of the Foreign Exchange Management Act, 1999.' (42 of1999.)

-"Foreign currency" means any currency other than Indian currency;"

-"Indian currency" means currency which is expressed or drawn in Indian rupees but does not

include special bank notes and special one rupee notes issued under section 28A of the ReserveBank of India Act, 1934 (2 of 1934);"

-“Board” herein means the Central Board of Excise and Customs constituted under the CentralBoards of Revenue Act, 1963 (54 of 1963);

F. Amendment made in Section 68(2) of the Act

Section 68- Payment of Service tax

(1)Every person providing taxable service to any person shall pay service tax at the rate specified insection 66 in such manner and within such period as may be prescribed.

(2) Notwithstanding anything contained in sub-section (1), in respect [such taxable services as may benotified] by the Central Government in the Official Gazette, the service tax thereon shall be paid by such

person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation tosuch service.]




Provided that the Central Government may notify the service and the extent of service tax which shall be payable by such person and the provisions of this Chapter shall apply to such person to the extent sospecified and the remaining part of the service tax shall be paid by the service provider.";

Amendment: The words "any taxable service notified" provisioned in sub-clause (2) ofSection 68 has been substituted by the words "such taxable services as may be notified”

Service tax is an indirect tax in which there are usually two parties in a contract. One whoprovides services known as the “Service provider” and the other is the receiver of servicesknown as the “Service recipient”. It is service recipient who has to bear the incidence, howeverthe responsibility to deposit Service Tax with the Government treasury is that of the ServiceProvider.

In case of Specified services the responsibility of payment of service tax has been vested uponthe service recipient in contrast with to the generally accepted practice of payment by serviceprovider. However after the amendment proposed in Section 68(2) vide Finance Bill 2012, the

Government vide Notification shall specify such services in which the liability to pay service taxshall be paid by the service recipient and the service provider as well. Further Government videNotification no. 15/2012 has specified these services which are reproduced hereunder:

S.No.

Description of Service Percentage ofservice tax paidby the personproviding service

Percentage of ServiceTax payable by theperson receiving theservice

1. (a)In respect of services provided oragreed to be provided by way ofrenting or hiring any motor vehicledesigned to carry passenger onabated value

(b)In respect of services providedor agreed to be provided by way ofrenting or hiring any motor vehicledesigned to carry passenger on nonabated value

Nil

60%

100%

40%

2. in respect of services provided oragreed to be provided by way ofsupply of manpower for anypurpose

25% 75%

3. In respect of services provided oragreed to be provided by way ofworks contract

50% 50%

4. in respect of any taxable servicesprovided or agreed to be providedby any person who is located in anon-taxable territory and receivedby any person located in the taxableterritory

Nil 100%




This mechanism of distribution of Service Tax between the Service Provider and Service Recipientshall only be applicable if such services are provided by any individual, Hindu Undivided Family,proprietary firm, partnership firm whether registered or not including association of persons,located in the taxable territory to any company.

In addition to the services specified in the table above the following services have also been addedvide Notification No. 15/2012 dated 17.03.2012 wherein service Tax is payable by the recipient ofservice. These include:a) Services provided or agreed to be provided by an Arbitral Tribunalb) Services provided or agreed to be provided by an Individual Advocatec) Services provided or agreed to be provided by way of support service by Government or local

body

G. Section 72A proposed to be inserted vide Finance bill 2012.

'72A. (1) If the Commissioner of Central Excise, has reasons to believe that any person liable to pay service

tax (herein referred to as ''such person''),––

(i) has failed to declare or determine the value of a taxable service correctly; or

(ii) has availed and utilised credit of duty or tax paid-

(a) which is not within the normal limits having regard to the nature of taxable service provided, the extentof capital goods used or the type of inputs or input services used, or any other relevant factors as he maydeem appropriate; or

(b) by means of fraud, collusion, or any willful misstatement or suppression of facts; or

(iii) has operations spread out in multiple locations and it is not possible or practicable to obtain a true andcomplete picture of his accounts from the registered premises falling under the jurisdiction of the saidCommissioner,

he may direct such person to get his accounts audited by a chartered accountant or cost accountantnominated by him, to the extent and for the period as may be specified by the Commissioner.

(2) The chartered accountant or cost accountant referred to in sub-section (1) shall, within the periodspecified by the said Commissioner, submit a report duly signed and certified by him to the saidCommissioner mentioning therein such other particulars as may be specified by him.

(3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of such person havebeen audited under any other law for the time being in force.

(4) The person liable to pay tax shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under sub-section (1) and proposed to be utilised in any proceeding under the provisions of this Chapter or rules made thereunder.

Explanation.— For the purposes of this section,––




(i) "chartered accountant" shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949;

(ii) "cost accountant" shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the

Cost and Works Accountants Act, 1959.';

According to the provisions of section 72A provided above, if the Commissioner of Central Excise,has reasons to believe that any person liable to pay service tax has failed to declare or determinethe value of a taxable service correctly or has availed and utilised credit of duty or tax paid whichis not within the normal limits by means of fraud, collusion, or any willful misstatement orsuppression of facts or has operations spread out in multiple locations and it is not possible orpracticable to obtain a true and complete picture of his accounts from the registered premises hemay direct such person to get his accounts audited by a chartered accountant or cost accountantnominated by him

“Chartered accountant” under the Chartered Accountant Act 1949 means “a person who is a member of the

Institute of Chartered Accountants of India

“Cost accountant” means a person who is a member of the Institute Cost and Works Accountants of India

H. Amendments made in Section 73 (1) of the Act

Section 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneouslyrefunded

(1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneouslyrefunded, the [Central Excise Officer] may, within [ eighteen months ] from the relevant date, serve noticeon the person chargeable with the service tax which has not been levied or paid or which has been short-leviedor short-paid or the person to whom such tax refund has erroneously been made, requiring him to show causewhy he should not pay the amount specified in the notice:

PROVIDED that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of—

a. fraud; or

b. collusion; or

c. willful mis-statement; or

d. suppression of facts; or

e. contravention of any of the provisions of this Chapter or of the rules made thereunder with intent toevade payment of service tax,

by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect,

as if, for the words [ eighteen months ], the words "five years" had been substituted.

Explanation: Where the service of the notice is stayed by an order of a court, the period of such stay shall beexcluded in computing the aforesaid period of [ eighteen months ] or five years, as the case may be.




According to the provisions of Section 73(1), the Department has raised the period for issue ofShow Cause Notice one year (12 months) to 18 months due to the reason that period of filing ofService Tax returns for large assessees have been reduced from half yearly to monthly. One morereason behind raising the time period is to have more time in hand for scrutiny of returns from the

audited accounts available

I. Section 73(1A) inserted in the Finance Act

Section 73(1A)

"(1A) Notwithstanding anything contained in sub-section (1), the Central Excise Officer may serve,subsequent to any notice or notices served under that sub-section, a statement ,containing the details of service tax not levied or paid or short levied or short paid or erroneously refunded for the subsequent period,on the person chargeable to service tax, then, service of such statement shall be deemed to be service of noticeon such person, subject to the condition that the grounds relied upon for the subsequent period are same asare mentioned in the earlier notices.";

The insertion of this section widens the scope of the Department to initiate recovery proceedings forNon-Payment, short payment or erroneous refund of service tax.

For Example: If the period of limitation to issue a Show cause Notice under Section 73(1) haselapsed, but the department had earlier issued a Show cause Notice to the assessee for the priorperiod , then on the basis of the same grounds raised and relied in the earlier Show cause Notice,the Central Excise Officer may serve a statement ,containing the details of service tax not levied or paid or short levied for the period in dispute which shall be deemed to be service of a Notice, and whichshall not be treated as time barred.

J. Amendment made in Section 73(4A) of the Act

Section 73(4A) Notwithstanding anything contained in [ sub-sections (4)], where during the course of anyaudit, investigation or verification, it is found that any service tax has not been levied or paid or has beenshort-levied or short-paid or erroneously refunded, but the true and complete details of transactions areavailable in the specified records, the person chargeable to service tax or to whom erroneous refund has beenmade, may pay the service tax in full or in part, as he may accept to be the amount of tax chargeable or erroneously refunded along with interest payable thereon under section 75 and penalty equal to one per centof such tax, for each month, for the period during which the default continues, up to a maximum of twenty-

five per cent of the tax amount, before service of notice on him and inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under sub-section (1) inrespect of the amount so paid and proceedings in respect of the said amount of service tax shall be deemed tohave been concluded:

Provided that the Central Excise Officer may determine the amount of service tax, if any, due from such person, which in his opinion remains to be paid by such person and shall proceed to recover such amount in

the manner specified in sub-section (1).

Explanation.—For the purposes of this sub-section and section 78, “specified records” means recordsincluding computerised data as are required to be maintained by an assessee in accordance with any law for the time being in force or where there is no such requirement, the invoices recorded by the assessee in thebooks of account shall be considered as the specified records.]




As per Section 73(4A), Reference to sub-section (3) has been deleted so that the sub section (4A) willnot overrule the sub-section (3).This is so because earlier by finance Act 2011, Sub section 4A was inserted to make sub section (3)redundant which provided that where the assessee pays the service tax on the basis of its own

ascertainment or of Central Excise Officer before the issue of SCN upon him, No SCN will be servedupon him.

Further, Rule of harmonious Construction has gained its relevance through the amendment in Subsection 4A, keeping intact the provisions of Sub section 3.

K. Amendment made in Section 80 of the Finance Act

80. Penalty not to be imposed in certain cases.

(1)Notwithstanding anything contained in the provisions of section 76, section 77 1[or 2[firstproviso to sub-section (1) of section 78]], no penalty shall be imposable on the assessee for anyfailure referred to in the said provisions, if the assessee proves that there was reasonable cause for

the said failure

(2) Notwithstanding anything contained in the provisions of section 76 or section 77 or section 78, no penalty shall be imposable for failure to pay service tax payable, as on the 6th day of March, 2012, on thetaxable service referred to in sub-clause (zzzz) of clause (105) of section 65, subject to the condition that theamount of service tax along with interest is paid in full within a period of six months from the date on whichthe Finance Bill, 2012 receives the assent of the President.";

Section 65 (105)(zzzz) is in relation to Renting of Immovable property service. The insertion of thissub-section stipulates that no penalty under section 76, 77 and 78 shall be imposable if the servicetax in relation to Renting of Immovable property along with interest uptil 6th march 2012 is paidwithin six months from the date on which the Finance bill receives its assent from the President.

L. Amendment in Section 83 of the Finance Act 1994

Application of certain provisions of Act 1 of 1944.

83. The provisions of the following sections of the Central Excise Act, 1944 (1 of 1944), as in force from timeto time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise:—

[9A, 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, [ 12E, 14, 15, 31, 32, 32A to 32P(both inclusive), 33A, 34A, 35EE, 35F] , [35FF] to 35-O (both inclusive), 35Q,[35R,] 36, 36A, 36B, 37A,37B, 37C, 37D,[38A] and 40.

The figures and letters "12E, 14, 14AA, 15, 33A, 34A, 35F" provisioned under section 83 of the Act weresubstituted by the figures and letters 12E, 14, 15, 31, 32, 32A to 32P (both inclusive), 33A, 34A, 35EE,35F

Section Description of the Section

12E Powers of Central Excise Officers

14 Power to summon persons to give evidence and produce documents in inquiries under this




Act

15 Officers required to assist Central Excise Officers

31 Definitions - Settlement of Cases

32 Customs and Central Excise Settlement Commission32A Jurisdiction and powers of Settlement Commission

32B Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances

32C Power of Chairman to transfer cases from one Bench to another

32D Decision to be by majority

32E Application for settlement of cases

32F Procedure on receipt of an application under section 32E

32G Power of Settlement Commission to order provisional attachment to protect revenue

32H Power of Settlement Commission to reopen completed proceedings

32I Powers and procedure of Settlement Commission

32J Inspection, etc., of reports32K Power of Settlement Commission to grant immunity from prosecution and penalty

32L Power of Settlement Commission to send a case back to the Central Excise Officer.-

32M Order of settlement to be conclusive

32N Recovery of sums due under order of settlement

32O Bar on subsequent application for settlement in certain cases

32P Proceedings before Settlement Commission to be judicial proceedings

33A Adjudication procedure

34A Confiscation or penalty not to interfere with other punishments

35EE Revision by Central Government.

35F Deposit, pending appeal, of duty demanded or penalty levied

M. Amendment made in Section 85(3) of the Finance Act, Further sub-section 3(A) has beeninserted vide this Finance Bill 2012

85(3) Appeals to the Commissioner of Central Excise (Appeals).

(3) An appeal shall be presented within three months from the date of receipt of the decision or order of [suchadjudicating authority], relating to service tax, interest or penalty under this Chapter, [ made before thedate on which the Finance Bill, 2012 receives the assent of the President "]:

Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it

to be presented within a further period of three months

Amendment: In sub-section (3), after the words "under this Chapter", the words and figures ", madebefore the date on which the Finance Bill, 2012 receives the assent of the President" has beeninserted




Further Section 3A has been inserted

85(3A) " An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President,

relating to service tax, interest or penalty under this Chapter:

Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow itto be presented within a further period of one month.";

With the insertion of Section 85(3A), the time limit for filing an appeal by an assessee before theCommissioner (Appeals) shall be reduced from three months to two months after the Finance Bill2012 receives its assent from the President. However, the time limit to file an appeal beforeCommissioner (Appeals) shall continue to remain three months if the assessee has received the orderof the adjudicating authority before the President gives its assent to the Finance bill 2012.

N.

Amendments made in Section 86(1) of the Act. Further section 86(3) has been substituted.

86(1) Appeals to Appellate Tribunal.

(1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise undersection 73 or section 83A or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appealto the Appellate Tribunal against such order [ within three months of the date of receipt of such order]

Amendment: The words "within three months of the date of receipt of the order" have be insertedunder Section 86(1) of the Act to allow an assessee to file an appeal in the Tribunal within threemonths from the receipt of such order. It is worth mentioning that the time limit of 3 months byassessee was specified in sub-rule (3) of section 86.

Section 86(3) Every appeal under sub-section (2) or sub-section (2A) shall be filed within four months fromthe date on which the order sought to be appealed against is received by the Committee of Chief Commissioners or, as the case may be, the Committee of Commissioners.";

Sub-clause (3) of Section 86 has been substituted which allows the Department to file an appealbefore the Tribunal within a period of four months. Prior to the proposal made in the Finance bill2012 both the assessee and the Department could file an appeal before the Tribunal within threemonths from the date of receipt of the Order. However after the proposal made in the Finance Bill,the assessee shall still have the option to file an appeal with the Tribunal within three months fromthe date of the receipt of the order, whereas the Department has been given the option to file anappeal before the Tribunal within four months from the date of the receipt of the Order.

O. Amendment in Section 88 of the Finance Act

88. Liability under Act to be first charge.—Notwithstanding anything to the contrary contained in anyCentral Act or State Act, any amount of [ tax ], penalty, interest, or any other sum payable by an assessee or any other person under this Chapter, shall, save as otherwise provided in section 529A of the Companies Act,1956 (1 of 1956) and the Recovery of Debts Due to Banks and the Financial Institutions Act, 1993 (51 of 1993)




and the Securitisation and Reconstruction of Financial Assets and the Enforcement of Security Interest Act,2002 (54 of 2002), be the first charge on the property of the assessee or the person as the case may be.

The word “duty” has been substituted by the word “tax”. Thus the Department , save as otherwise

provided in section 529A of the Companies Act, 1956 (1 of 1956) and the Recovery of Debts Due toBanks and the Financial Institutions Act, 1993 (51 of 1993) and the Securitisation and Reconstructionof Financial Assets and the Enforcement of Security Interest Act, 2002 (54 of 2002), shall have the firstcharge over the property in case there is any amount of tax, interest or penalty which an assessee hasto pay under this chapter.

P. Amendment in Section 89(1)(a) of the Finance Act

Section 89 deals with the Offences and Penalties under the Act

Offences and penalties.—

(1) Whoever commits any of the following offences, namely,—

(a) provides any taxable service chargeable to service tax under sub-section (1) of section 68 or receives anytaxable service chargeable to tax under subsection (2) of said section, without an invoice issued in accordancewith the provisions of this Chapter or the rules made thereunder;

Sub-section (1), for clause (a), the following clause shall be substituted with effect from the date onwhich the Finance Bill, 2012 receives the assent of the President, namely:—

"(a) knowingly evades the payment of service tax under this Chapter; or";

Notes: The scope of Section 89 has been enhanced by including assessees who have evades theservice tax under the Finance Act 1994. Earlier the prosecution was limited to the extent of non-issuance of invoices under the Act where taxable services chargeable to service tax have beenprovided to a person

Q. Power to Grant Rebate for Exports Amended (Section 93A)

Where any goods or services are exported, the Central Government may grant rebate of service tax paidon taxable services which are used as input services for the manufacturing or processing [ or removalor export of such goods ] or for providing any taxable services and such rebate shall be subject to suchextent and manner as may be prescribed :

Provided that where any rebate has been allowed on any goods or services under this section and thesale proceeds in respect of such goods or consideration in respect of such services are not received by or on behalf of the exporter in India within the time allowed by the Reserve Bank of India under section 8of the Foreign Exchange Management Act, 1999 (42 of 1999), such rebate shall be deemed never to havebeen allowed and the Central Government may recover or adjust the amount of such rebate in such

manner as may be prescribed.

Amendment : In section 93A, For the words "of such goods", the words "or removal or export of suchgoods" shall be substituted




According to the amended provisions of Section 93A, Rebate of service tax paid extended to inputservices used for the removal or export of goods also.

Prior to proposed amendment, rebate was allowed only in respect of input services used for themanufacturing or processing of exported goods. But after amendment, rebate is available for

those input services also which are used for the removal or export of such goods.

R. Rules made under Section 94 made applicable to services other than taxable services (Section

93B)

[All rules made under section 94 and applicable to the taxable services shall also be applicableto any other service in so far as they are relevant to the determination of any tax liability,refund, credit of service tax or duties paid on inputs and input services or for carrying out the provisions of Chapter V of the Finance Act, 1994].

According to newly inserted Section 93B, all rules made under section 94 for the administrationof service tax leviability shall now be applicable in relation to any service to the extent they arerelevant in determining any tax liability, refund, credit of service tax or duties paid or for

carrying out the provisions of Chapter V of Finance Act, 1994.

S. Amendment in – Grant of Power to make New Rules (Section 94)

(hhh) the date for determination of rate of service tax and the place of provision of taxable service [under section 66C].

- After amendment in Clause (hhh), in Section 94, Rules may provide for determination of place

of provision of taxable service as per Place of Provision of service rules, 2012.

- 2 new clauses inserted so as to extend the power to make rules in relation to matters relating

to compounding of offences and settlement of cases.

[(i) provide for the amount to be paid for compounding and the manner of compounding of offences;

(j) provide for the settlement of cases, in accordance with sections 31, 32 and 32A to 32P (bothinclusive), in Chapter V of the Central Excise Act, 1944 as made applicable to service tax videsection 83]

- Clause (ee) shall be deleted

(ee) the credit of service tax paid on the services consumed for providing a taxable service incase where the services consumed and the service provided fall in the same category of taxableservice

T. Power to remove difficulties arising from insertion of new sections 65B, 66B, 66C, 66D,

66E & 66F (Section 95(1-I))

A new sub section has been inserted 95(1-I) whereby it has been provided that if any difficultyarises in giving effect to sec 143 of Finance Act 2012, in relation to insertion of new sections65B, 66B, 66C, 66D, 66E & 66F in chapter V of the Finance Act 1994, Central Government may




by issue of an order make provisions for removing difficulties from such date withretrospective effect. However, foregoing order is required to be issued within a period of twoyears from the date of coming into force of these provisions.

[95(1-I) If any difficulty arises in giving effect to section 143 of the Finance Act, 2012, in so far as itrelates to insertion of sections 65B, 66B, 66C, 66D, 66E and section 66F in Chapter V of the Finance

Act, 1994, the Central Government may, by order published in the Official Gazette, which is notinconsistent with the provisions of this Chapter, make such provisions, as may be necessary or expedient for the purpose of removing the difficulty from such date, which shall include the power to

give retrospective effect from a date not earlier than the date of coming into force of the Finance Act,2012:Provided that no such order shall be made after the expiry of a period of two years from the date of coming into force of these provisions. ]

U. Increase in Scope of Advance Ruling (Section 96C)

As per finance Bill 2012, Clause (e) of Section 96C has been substituted which is as under:

[(e) admissibility of credit of duty or tax in terms of the rules made in this regard] Earlier the clause was read as:(e) admissibility of credit of service taxAs per the amended provision, Advance ruling can now be sought in relation to admissibilityof credit of duty or tax in terms of rules made in this regard. Earlier it could be sought inrelation to service tax only.

V. Retrospective Exemptions to settle disputes in respect of management, maintenance or

repair of roads and non- commercial Government Buildings for the specified period

(Section 97 and 98 respectively)

"97. (1) Notwithstanding anything contained in section 66, no service tax shall be levied or collected inrespect of management, maintenance or repair of roads, during the period on and from the 16th day of June,2005 to the 26th day of July, 2009 (both days inclusive).

(2) Refund shall be made of all such service tax which has been collected but which would not have been socollected had sub-section (1) been in force at all material times.(3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service taxshall be made within a period of six months from the date on which the Finance Bill, 2012 receives the assentof the President.

98. (1) Notwithstanding anything contained in section 66, no service tax shall be levied or collected inrespect of management, maintenance or repair of non-commercial Government buildings, during the periodon and from the 16th day of June, 2005 till the date on which section 66B comes into force.(2) Refund shall be made of all such service tax which has been collected but which would not have been socollected had sub-section (1) been in force at all material times.(3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service taxshall be made within a period of six months from the date on which the Finance Bill, 2012 receives the assent

of the President.]

According to these newly inserted sections, service tax shall not be levied or collected in respect ofmanagement, maintenance or repair of roads and non- commercial Government Buildings during theperiod from 16th June, 2005 to 26th July, 2009 (in case of non – commercial Government Buildings tillthe date on which section 66B comes into force).




Service tax collected in respect of said activities during the above said period shall be refunded.For claiming such refund, application shall be made within a period of six months from the date onwhich the Finance Bill 2012 receives the assent of the President.

*************

“What is Service? “ – Clause 44 of Section 65B of the Finance ActUnder the existing system, the term “Service” has not been defined, however, in the new system, allservices are taxable, except those provided in the negative list. Therefore, it is essential to understandthe meaning of the term ‘Service’.

The various components of the definition of “service” are:-

1. Any Activity - The word activity is not defined under the Act, it would include an act done, a

work done, a deed done, an operation carried out, execution of an act, provision of a facility

etc. It is a term with very wide connotation.

2. For Consideration – The word ‘consideration’ is not defined under the Act, it means

everything received in return for a provision of service which includes monetary payment

and any consideration of non- monetary nature as well as deferred consideration.

Monetary Consideration- Monetary consideration means any consideration received in the form ofmoney. ‘Money’ includes not only cash but also cheque, promissory note, bill of exchange, letter ofcredit, draft, pay order, traveler’s cheque, money order, postal or electronic remittance or any suchsimilar instrument when used as consideration to settle an obligation.Non-monetary consideration could be in the form of following:

• Supply of goods and services in return for provision of service

• Refraining or forbearing to do an act in return for provision of service

• Tolerating an act or a situation in return for provision of a service

• Doing or agreeing to do an act in return for provision of service

3. Carried out by a Person for Another - The phrase ‘provided by one person to another’

signifies that services provided by a person to self are outside the ambit of taxable service.

Two exceptions have been carved out to the general rule that only services provided by a personto another are taxable. These exceptions are:

• an establishment of a person located in taxable territory and another establishment of

such person located in non-taxable territory are treated as establishments of distinct

persons. [Similar provision exists presently in section 66A(2)].

• an unincorporated association or body of persons and members thereof are also treated as

distinct persons. [Also exists presently in the explanation to section 65].




4. Includes a Declared Service - Declared Services are activities that have been specified in

Section 66 E of the Act. When such activities are carried out by one person for another in the

taxable territory for a consideration then such activities are taxable services.

The definition of ‘Service’ does not include –

1. Any activity that constitutes only a transfer in title of

(a) (i) goods or (ii) immovable property by way of sale, gift or in any other manner -

‘Transfer of title’ means change in ownership. Mere transfer of custody or possession

over goods or immovable property where ownership is not transferred does not

amount to transfer of title.

(b) A transaction only in (iii) money or (iv) actionable claim -

Following are the illustrations of transactions only “in money”

• Deposits in or withdrawals from a bank account.

• Advancement or repayment of principal sum on loan to someone.

• Conversion of Rs 1,000 currency note into one rupee coins to the extent amount is

received in money form.

Section 3 of the Transfer of Property Act, 1893, “actionable claims” means a claim to any debt,other than a debt secured by mortgage of immovable property or by hypothecation or pledge ofmovable property or to any beneficial interest in movable property not in the possession, eitheractual or constructive, of the claimant, which the Civil Courts recognize as affording grounds forrelief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.

Illustrations of actionable claims are -

• Unsecured debts

• Right to participate in the draw to be held in a lottery.

2. Any service provided by an employee to an employer in the course of the employment-

Services that are provided by the employee to the employer in the course of employment areoutside the ambit of services. Services provided outside ambit of employment for a considerationwould be a service.

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

In addition to the above exclusions, 3 explanations has also been provided so as to clarify as towhat doesnot constitute a “Service”1 ‘Service’ does not cover functions or duties performed by Members of Parliament, StateLegislatures, Panchayat, Municipalities or any other local authority, any person who holds anypost in pursuance of the provisions of the Constitution or any person as a Chairperson or aMember or a Director in a body established by the Central or State Governments or local authorityand who is not deemed as an employee.




2 Two exceptions have been prescribed, by way of a deeming provision, to the general rule thatonly services provided by a person to another are taxable. As per these deeming provisionsestablishment of a person located in taxable territory and establishment of such person located innon-taxable territory are deemed to be establishments of distinct persons. Further an

unincorporated association or body of persons and members thereof are also deemed as separatepersons.

3 A branch or an agency of a person through which the person carries out business is also anestablishment of such person.

*******




DECLARED SERVICES

Renting of immovable property- Section 66E(a)

DEFINITIONSRenting means “allowing, permitting or granting access, entry, occupation, usage or any such facility,wholly or partly, in an immovable property, with or without the transfer of possession or control ofthe said immovable property and includes letting, leasing, licensing or other similar arrangements inrespect of immovable property”. - Section 65B(52)

NATURE OF SERVICEAny Service provided in relation to Renting of Immovable Property shall include

a. Services are provided or agreed to provided to another person

b. Services are provided by any other person andc. Such services are in relation to Renting of Immovable property by way of entering into letting,

leasing, licensing or other similar arrangements in respect of such immovable property.

PERSON RESPONSIBLE FOR PAYMENT OF SERVICE TAXService tax is required to be paid on the service provided by any person to another in the taxableterritory where taxable territory means territory to which provision of chapter-V of the Finance Act,1994 apply i.e. whole of India excluding Jammu & Kashmir

Liability under Reverse Charge:

However, wherever the service provider is located outside the taxable territory but the service is being

provided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICES RULES, 2012 The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.

The ‘Export of Service Rules’ 2005 and ‘Taxation of Services (Provided from outside India and receivedin India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules’ 2012.

In this regard, Place of Provision of Services Rules’ 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to beprovided.

As per Rule 5 of the Place of Provision of Service Rules, 2012, place of provision of ‘Renting ofImmovable Property Services’ shall be the place where the immovable property is located, irrespectiveof where the provider or receiver is located – D.O.F No. 334/1/2012- TRU dated 16.03.2012




CLARIFICATION BY DEPARTMENTDepartment vide its Circular No. DOF No. 334/1/2012-TRU New Delhi, dated 16 th March , 2012 hasclarified the service which is as follows :-

Would permitting usage of a property for a temporary purpose like conduct of a marriage or anyother social function be taxable?Yes. As per definition allowing or permitting usage of immovable property, without transferringpossession of such property, is also renting of immoveable property. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

Would activities referred in column 1 of a table below be chargeable to service tax?

S.No Nature of Activity Taxability

1. Renting of property to educational body Chargeable to service tax; no exemption

2. Renting of vacant land for animal husbandryor floriculture

Not chargeable to service tax as it is coveredin the negative list entry relating to

agriculture3. Permitting use of immoveable property for

placing vending/dispensing machinesChargeable to service tax as permitting usageof space is covered in the definition ofrenting

4. Allowing erection of communication toweron a building for consideration.

Chargeable to service tax as permitting usageof space is covered in the definition ofrenting

5. Renting of land or building for entertainmentor sports

Chargeable to service tax as there is nospecific exemption.

6. Renting of theatres by owners to filmdistributors

Chargeable to service tax as the arrangementamounts to renting of immovable property.

-DO.F. No 334/1/2012-TRU dated 16.03.2012.

Would service tax be chargeable on renting of property located outside the taxable territory butwhere the property is owned by a person located in the taxable territory?

In respect of a service relating to immovable property the place of provision of service is the location ofimmovable property. If the immovable property is located outside taxable territory then it becomes aservice provided outside the taxable territory even if the property owners is located in the taxableterritory and would hence not be taxable. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

SPECIFIC EXCULSION

From negative list as per Section 66D:Renting of certain kinds of property is specifically included in the negative list of services andtherefore, renting of such immovable property shall not attract levy of service tax. These are -




• renting of vacant land, with or without a structure incidental to its use, relating to agriculture.

• renting of residential dwelling for use as residence

• renting out of any property by Reserve Bank of India

• renting out of any property by a Government or a local authority to all non-business entity. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

SPECIFIC EXEMPTION

Exemption is provided vide Notification No. 12/2012 dated 17th March 2012:1. Renting of precincts of a religious place meant for general public2 Renting of a hotel, inn, guest house, club, campsite or other commercial places meant for

residential or lodging purposes, having declared tariff of a room below rupees one thousandper day or equivalent

PROPOSED EXEMPTION:

Taxable service of renting of an immovable property, from so much of the service tax leviable thereon,as is in excess of the service tax calculated on a value which is equivalent to the gross amount chargedfor renting of such immovable property less taxes on such property, namely property tax levied andcollected by local bodies. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

VALUATION OF SERVICE

Determination of Value of taxable service depends on mode of consideration as exhibited in thefollowing table:-

Sl.No.

RelevantSection

Mode ofConsideration

Value of Taxable Service

1. 67(1)(i) Wholly in money Gross Amount charged by the service provider for suchservice provided or to be provided by him.

2. 67(1)(ii) Not wholly or partlyconsisting in moneyi.e. wholly or partlyin kind

Amount charged and equivalent money value ofconsideration in kind with the addition of service taxcharged

3. 67(1)(iii) Not ascertainable Equivalent to the gross amount charged to providesimilar service to any other person in the ordinary courseof trade and the gross amount charged is the soleconsideration.Where the value cannot be determined in aforesaidmanner, equivalent money value of such considerationwhich shall, in no case be less than the cost of provisionof such taxable service

4 67(2) Where the gross amount charged is inclusive of service tax payable or where the

service recipient does not make payment of service tax charged due to anyreason, amount realised shall be treated as inclusive of service tax.

5 67(3) Gross amount shall include any amount received towards the taxable servicebefore, during or after provision of such service

6. 67A Value of taxable service shall be the value as applicable at the time when taxableservice has been provided or agreed to be provided.




CENVAT CREDIT RULES, 2004In terms of CENVAT Credit Rules, 2004 a Service Provider is entitled to claim credit of service tax paid

on” Input Services”, as well as duty paid on” Inputs” and “Capital Goods” received and used inrelation to provision of output taxable services.

Construction ServiceConstruction of a complex, building, civil structure or a part thereof, including a complex or building intended

for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion-certificate by the competent authority.

Explanation- For the purposes of this clause,—

(I) the expression "competent authority" means the Government or any authority authorized to issuecompletion certificate under any law for the time being in force and in case of non requirement of suchcertificate from such authority, from any of the following, namely:––

(A) Architect registered with the Council of Architecture constituted under the Architects Act, 1972;or

(B) Chartered engineer registered with the Institution of Engineers (India); or

(C) Licensed surveyor of the respective local body of the city or town or village or development or planning authority;

(II) the expression "construction" includes additions, alterations, replacements or remodeling of any existingcivil structure;. - Section 66E (b)

NATURE OF SERVICE

Any service provided in Construction shall include following:

1. Construction of a complex, building, civil structure or a part thereof, including a complex orbuilding intended for sale to a buyer except where the entire consideration is received afterissuance of completion-certificate by the competent authority.

2. Additions, alterations, replacements or remodeling of any existing civil structure,

PERSON RESPONSIBLE FOR PAYMENT OF SERVICE TAX

Service tax is required to be paid on the service provided by any person to another in the taxableterritory where taxable territory means territory to which provision of chapter-V of the Finance Act,1994 apply i.e. whole of India excluding Jammu & Kashmir.

Liability under Reverse Charge:However, wherever the service provider is located outside the taxable territory but the service is being

provided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICES RULES, 2012The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.




The ‘Export of Services, Rules, 2005’ and ‘Taxation of Services (Provided from outside India andreceived in India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules, 2012’.In this regard, Place of Provision of Services Rules, 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to be

provided.

As per the proposed Rule 5 of the Place of Provision of Services Rules, 2012, place of provision of‘Construction service’ provided in relation to immovable property shall be the place where theimmovable property (land or building) is located, irrespective of where the provider or receiver islocated. -DO.F. No 334/1/2012-TRU dated 16.03.2012.


Construction of a complex, building, civil structure or a part thereof, including a complex orbuilding intended for sale to a buyer, wholly or partly, except where the entire consideration is

received after issuance of certificate of completion by a competent authority.This service is already taxable as part of construction of residential complex service under clause(zzzh) of sub-section 105 of section 65 of the Act and as part of service in relation to commercial orindustrial construction under clause (zzq) of sub-section 105 of section 65 of the Act. This entry coversthe services provided by builders or developers where building complexes, civil structure or partthereof are offered for sale but the payment for such building or complex or part thereof is receivedbefore the issuance of completion certificate by a competent authority. DO.F. No 334/1/2012-TRU dated 16.03.2012

There are various types of arrangements under which builders or developers sell buildings, flats,office space etc. to buyers where entire consideration is received before completion certificate isissued including tripartite model, redevelopment model, investment model, reconversion model,BOT projects and joint development agreement model. How will the taxability of sucharrangements be determined?A detailed circular has been issued by the Board dealing with such arrangements in the context ofexisting taxable service of same description vide Circular no 151/2/2012 ST dated 10/2/12 issuedfrom F.No. 332/13/2011 TRU. The said circular may be referred to for guidance on this point. DO.F. No 334/1/2012-TRU dated 16.03.2012.

In certain States requirement of completion certificate are waived of for certain specified types ofbuildings. How would leviability of service tax be determined in such cases?In terms of explanation in section 66E in such cases the completion certificate issued by a architect or achartered engineer or a licensed surveyor of the respective local body or development or planningauthority would be treated as completion certificate for the purposes of determining chargeability ofservice tax. DO.F. No 334/1/2012-TRU dated 16.03.2012.

SPECIFIC EXEMPTION

Exemptions provided vide Notification No. 12/2012 dated 17th March 2012:1. Services provided to the Government or local authority by way of erection, construction,

maintenance, repair, alteration, renovation or restoration of –






i.e. wholly or partlyin kind

charged

3. 67(1)(iii) Not ascertainable Equivalent to the gross amount charged to providesimilar service to any other person in the ordinary course

of trade and the gross amount charged is the soleconsideration.Where the value cannot be determined in aforesaidmanner, equivalent money value of such considerationwhich shall, in no case be less than the cost of provision ofsuch taxable service

4 67(2) Where the gross amount charged is inclusive of service tax payable or where theservice recipient does not make payment of service tax charged due to anyreason, amount realised shall be treated as inclusive of service tax.



CENVAT CREDIT RULES, 2004

In terms of CENVAT Credit Rules, 2004 a Service Provider is entitled to claim credit of service tax paidon” Input Services”, as well as duty paid on” Inputs” and “Capital Goods” received and used inrelation to provision of output taxable services.

Temporary transfer or permitting the use or enjoyment of any intellectual property right - Section 66E(c)

NATURE OF SERVICE

‘Intellectual property right’ has not been defined in the Act. The phase has to be understood as it isunderstood in normal trade parlance as per which intellectual property right includes the following –

- Copyright

- Patents

- Trademarks

- Designs

- Any other similar right to an intangible property -DO.F. No 334/1/2012-TRU dated 16.03.2012.

PERSON RESPONSIBLE FOR PAYMENT OF SERVICE TAXService tax is required to be paid on the service provided by any person to another in the taxable

territory where taxable territory means territory to which provision of chapter-V of the Finance Act,1994 apply i.e. whole of India excluding Jammu & Kashmir

Liability under Reverse Charge:




However, wherever the service provider is located outside the taxable territory but the service is beingprovided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICES RULES, 2012The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.The ‘Export of Services, Rules, 2005’ and ‘Taxation of Services (Provided from outside India andreceived in India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules, 2012’.

In this regard, Place of Provision of Services Rules, 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to beprovided.As per Rule 3 of the Place of Provision of Services Rules, 2012, place of provision of ‘IntellectualProperty Service’ shall be the place where the receiver of service is located. -DO.F. No 334/1/2012-TRU dated 16.03.2012.


Would the temporary transfer of a patent registered in a country outside India also be coveredunder this entry?Since there is no condition regarding the law under which an intellectual right should be registered,temporary transfer of a patent registered outside India would be covered in this entry. However, itwill become taxable only if the place of provision of service of temporary transfer of intellectualproperty right is in taxable territory. - DO.F. No 334/1/2012-TRU dated 16.03.2012.

SPECIFIC EXEMPTION

Exemptions provided vide Notification No. 12/2012 dated 17th

March 2012: Services provided in the course of temporary transfer or permitting the use or enjoyment of acopyright covered under clause (a) or (b) of sub-section (1) of section 13 of the Indian Copyright Act,1957 (14 of 1957), relating to original literary, dramatic, musical, artistic works or cinematograph films.

VALUATION OF SERVICEDetermination of Value of taxable service depends on mode of consideration as exhibited in thefollowing table:-

Sl.No.

RelevantSection






3. 67(1)(iii) Not ascertainable Equivalent to the gross amount charged to providesimilar service to any other person in the ordinary course




of trade and the gross amount charged is the soleconsideration.Where the value cannot be determined in aforesaidmanner, equivalent money value of such consideration

which shall, in no case be less than the cost of provision ofsuch taxable service




CENVAT CREDIT RULES, 2004In terms of CENVAT Credit Rules, 2004 Service Provider is entitled to claim credit of service tax paid

on “Input Services” as well as duty paid on “Inputs” and “Capital Goods” received and used forprovision of services.

Development, design, programming, customisation, adaptation, upgradation,enhancement, implementation of information technology- Section 66E(d)

DEFINITIONS

“ Information Technology Software” "information technology software" means any representation of instructions, data, sound or image,including source code and object code, recorded in a machine readable form, and capable of beingmanipulated or providing interactivity to a user, by means of a computer or an automatic data

processing machine or any other device or equipment. –Section 65B(28)

NATURE OF SERVICESuch services are in relation to

- development,- design,- programming,- customization,- adaptation,- upgradation,- enhancement,- implementation if information technology.

PERSON RESPONSIBLE FOR PAYMENT OF SERVICE TAXService tax is required to be paid on the service provided by any person to another in the taxableterritory where taxable territory means territory to which provision of chapter-V of the Finance Act,1994 apply i.e. whole of India excluding Jammu & Kashmir.




Liability under Reverse Charge:However, wherever the service provider is located outside the taxable territory but the service is beingprovided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICES RULES, 2012The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.The ‘Export of Services, Rules, 2005’ and ‘Taxation of Services (Provided from outside India andreceived in India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules, 2012’.

In this regard, Place of Provision of Services Rules, 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to beprovided.As per Rule 3 of the Place of Provision of Services Rules, 2012, place of provision of ‘InformationTechnology Software Service’ shall be the place where the receiver of service is located. -DO.F. No334/1/2012-TRU dated 16.03.2012.


Would sale of pre-packaged or canned software be included in this entry?No. Sale of pre-packaged or canned software is in the nature of sale of goods and is not covered in thisentry. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

Is on site development of software covered under this entry?Yes. On site development of software is covered under the category of development of informationtechnology software. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

Would providing advice, consultancy and assistance on matters relating to information technologysoftware be chargeable to service tax?These services may not be covered under the declared list entry relating to information technologysoftware. However, such activities when carried out by person for another for consideration would fallwithin the definition of service and hence chargeable to service tax if other requirements of taxabilityare satisfied. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

Would providing a license to use prepackaged software be a taxable service?It is a settled position of law that prepackaged software or canned software or shrink wrappedsoftware is goods. (Supreme Court judgment in case of Tata Consultancy Services vs State of AndhraPradesh [2002(178) ELT 22(SC) refers]. To determine whether providing license to use a software is aservice or sale of goods it would need to be seen whether the license to use packaged softwaretantamount to ‘transfer of right to use goods’. ‘Transfer of right to use goods’ is deemed to be a saleunder Article 366(29A) of the Constitution of India and transfer of goods by way of hiring, leasing,licensing or any such manner without transfer of right to use such goods is a declared service. -DO.F. No 334/1/2012-TRU dated 16.03.2012.






Sl.No.

RelevantSection






3. 67(1)(iii) Not ascertainable Equivalent to the gross amount charged to providesimilar service to any other person in the ordinary courseof trade and the gross amount charged is the soleconsideration.Where the value cannot be determined in aforesaidmanner, equivalent money value of such considerationwhich shall, in no case be less than the cost of provision ofsuch taxable service




CENVAT CREDIT RULES, 2004In terms of CENVAT Credit Rules, 2004 Service Provider is entitled to claim credit of service tax paid

on “Input Services” as well as duty paid on “Inputs” and “Capital Goods” received and used forprovision of services.

Agreeing to the obligation to refrain from an act, or to tolerate an act or asituation, or to do an act – Section 66E (e)

NATURE OF SERVICEAny activity carried out by a person for another person for consideration and involves agreeing to theobligation to

• refrain from an act, or

• tolerate an act or a situation , or

• to do an act ;

PERSON RESPONSIBLE FOR PAYMENT OF SERVICE TAXService tax is required to be paid on the service provided by any person to another in the taxableterritory where taxable territory means territory to which provision of chapter-V of the Finance Act,1994 apply i.e. whole of India excluding Jammu & KashmirLiability under Reverse Charge:




However, wherever the service provider is located outside the taxable territory but the service is beingprovided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICES RULES, 2012The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.The ‘Export of Services, Rules, 2005’ and ‘Taxation of Services (Provided from outside India andreceived in India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules, 2012’.In this regard, Place of Provision of Services Rules, 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to beprovided.As per Rule 3 of the Place of Provision of Services Rules, 2012, place of provision of such services shallbe the place where the receiver of service is located. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

CLARIFICATIONS BY DEPARTMENT

Department vide its Circular No. DOF No. 334/1/2012-TRU New Delhi, dated 16th March , 2012 hasclarified the nature of this Service as under :-In terms of this entry the following characteristics if carried out by a person for another forconsideration would be treated as provision of service.

• Agreeing to the obligation to refrain from an act.

• Agreeing to the obligation to tolerate an act or a situation.

• Agreeing to the obligation to do an act.

Would non-compete agreements be considered a provision of service?Yes. In case a company or any other person enters into a non-compete agreement with another personfor a consideration then it would be a provision of service.

-DO.F. No 334/1/2012-TRU dated 16.03.2012. VALUATION OF SERVICE


Sl.No.

RelevantSection






3. 67(1)(iii) Not ascertainable Equivalent to the gross amount charged to provide

similar service to any other person in the ordinary courseof trade and the gross amount charged is the soleconsideration.

Where the value cannot be determined in aforesaidmanner, equivalent money value of such consideration




which shall, in no case be less than the cost of provision ofsuch taxable service

4 67(2) Where the gross amount charged is inclusive of service tax payable or where the

service recipient does not make payment of service tax charged due to anyreason, amount realised shall be treated as inclusive of service tax.



CENVAT CREDIT RULES, 2004In terms of CENVAT Credit Rules, 2004 a Service Provider is entitled to claim credit of service tax paidon” Input Services”, as well as duty paid on” Inputs” and “Capital Goods” received and used inrelation to provision of output taxable services.

Transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods - Section 66E (f)

DEFINITIONS-“goods” means every kind of moveable property other than actionable claims and money andincludes stock and shares, growing crops, grass, and thing attached to or forming part of the landwhich are agreed to be severed before sale or under the contract of sale “- Section 65B(25)

-"actionable claim" shall have the meaning assigned to it in Section 3 of the Transfer of PropertyAct, 1882- Section 65B (1)

-"money" means Indian legal tender, cheque, promissory note, bill of exchange, letter of credit,draft, pay order, traveller cheque, money order, postal or electronic remittance or any such similarinstrument when used as consideration to settle an obligation or exchange with Indian legaltender of another denomination but shall not include any currency that is held for its numismaticvalue;-Section 65B (33)

As per Section 3 of the Transfer of Property Act, 1882:"actionable claim" means a claim to any debt, other than a debt secured by mortgage of immovableproperty or by hypothecation or pledge of movable property, or to any beneficial interest in movableproperty not in the possession, either actual or constructive, of the claimant, which the civil courtsrecognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing,conditional or contingent.

NATURE OF SERVICEAny Activity carried out by a person for another person for consideration and involves transfer ofgoods by way of

• Hiring

• Leasing




• Licensing in any manner

• Without transfer of right to use such goods.


Liability under Reverse Charge:However, wherever the service provider is located outside the taxable territory but the service is beingprovided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICES RULES, 2012The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.The ‘Export of Services, Rules, 2005’ and ‘Taxation of Services (Provided from outside India andreceived in India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules, 2012’.In this regard, Place of Provision of Services Rules, 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to beprovided.As per the proposed Rule 4 of the Place of Provision of Services Rules, 2012, place of provision of‘supply of tangible goods’ shall be the place where the services are performed - DO.F. No 334/1/2012-TRU dated 16.03.2012.

CLARIFICATIONS BY DEPARTMENTDepartment vide its Circular No. DOF No. 334/1/2012-TRU New Delhi, dated 16 th March , 2012 hasclarified the service which is as follows :-

What is the meaning and scope of the phrase ‘transfer of right to use such goods?Transfer of right to use goods is a well recognized constitutional and legal concept. Every transfer ofgoods on lease, license or hiring basis does not result in transfer of right to use goods. ’ Transfer ofright of goods’ involves transfer of possession and effective control over such goods in terms of the judgment of the Supreme Court in the case of State of Andhra Pradesh vs. Rashtriya Ispat Nigam

Limited. Transfer of custody along with permission to use or enjoy such goods, per se, does not lead totransfer of possession and effective control.The test laid down by the Supreme Court in the case of Bharat Sanchar Nigam Limited vs Union of

India [2006(2)STR 161(SC)] to determine whether a transaction involves transfer of right to use goods,which has been followed by the Supreme Court and Various High courts which is as follows :-

• There must be goods available for delivery.

• There must be consensus ad idem as to the identity of goods.

• The transferee should have legal right to use the goods – consequently all legalconsequences of such use including any permission or licenses required therefore shouldbe available to the transferee.

• For the period during which the transferee has such legal right, it has to be the exclusionto the transferor- this is the necessary concomitant of the plain language of the Statute,viz., a ‘transfer of the right to use’ and not merely a license to use the goods;




• Having transferred, the owner cannot again transfer the same right to others.

Whether a transaction amounts to transfer of right or not cannot be determined with reference to aparticular word or clause in the agreement. The agreement has to be read as a whole, to determine the

nature of the transaction. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

Whether the transactions listed in column 1 of the table below involve transfer of right to usegoods?

S.No

Nature Of Transaction Whether transaction involves transfer of right to use

1 A car is given in hire by a person to acompany along with a driver onpayment of charges on permonth/mileage basis.

Right to use is not transferred as the car owner retainsthe permissions and licenses relating to the cab.Therefore possession and effective control remainswith the owner (Delhi High Court Judgment in the caseof International travel house in Sales Tax Appeal no10/2009 refers). The service is, therefore covered in the

declared list entry2 Supply of equipment like excavators,wheel loaders, dump trucks, cranes etcfor use in a particular project wherethe person to whom such equipment issupplied is subject to such terms andconditions in the contract relating tothe manner of use of such equipmentreturn of such equipment after aspecified time, maintenance andupkeep of such equipment.

The transaction will not involve transfer of right to useequipment as in terms of the agreement the possessionand effective control over such equipment has not beentransferred along with the permission to use suchequipment. The receiver is not free to use suchequipment in any manner as he likes and conditionshave been imposed on use and control of suchequipment.

3 Hiring of Bank lockers The transaction does not involve the right to use suchgoods as possession of the lockers is not transferred to

the hirer even though the contents of the locker wouldbe in the possession of the hirer. ( refer to AndhraPradesh High Court Judgment in the case of State Bankof India Vs State of Andhra Pradesh)

4 Hiring out of vehicles where it is theresponsibility of the owner to abide byall the laws relating to motor vehicles

No transfer of right to use goods as effective controland possession is not transferred (Allahabad HighCourt judgment in Ahuja Goods Agency Vs State of UP[(1997) 106STC540] refers)

5 Hiring of audio visual equipmentwhere risk is of the owner

No transfer of right to use goods as effective controland possession is not transferred

Note: The list in the table above is only illustrative to demonstrate how courts have interpreted termsand conditions of various types of contracts to see if a transaction involve transfer of right to use

goods. The nature of each transaction has to be examined in totality keeping in view all the terms andcondition of an agreement relating to such transaction. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

SPECIFIC EXEMPTION

Exemptions provided vide Notification No. 12/2012 dated 17th March 2012:




Services by way of giving on hire:-(a) to a state transport undertaking, a motor vehicle meant to carry more than twelve passengers; or(b) to a goods transport agency, a means of transportation of goods

Abatement provided vide Notification 13/2012 dated 17.03.2012: Exemption is proposed from so much of the service tax leviable, as is in excess of the service taxcalculated on a value which is equivalent to a percentage specified in the corresponding entry incolumn (3) of the following Table, of the gross amount charged by such service provider for providingthe said taxable service, subject to the relevant conditions specified in the corresponding entry incolumn (4) of the saidTable:

Sl.No.

Description of taxableService

Percentage Conditions

(1) (2) (3) (4)

9. Renting of any motorvehicle

designed to carrypassenger

40 CENVAT credit on inputs, capital goods andinput services, used for providing the

taxable service, has not been taken 83 underthe provisions of the CENVAT Credit Rules,2004.

VALUATION OF SERVICEDetermination of Value of taxable service depends on mode of consideration as exhibited in thefollowing table:-

Sl.No.

RelevantSection







4 67(2) Where the gross amount charged is inclusive of service tax payable or where theservice recipient does not make payment of service tax charged due to any

reason, amount realised shall be treated as inclusive of service tax.5 67(3) Gross amount shall include any amount received towards the taxable servicebefore, during or after provision of such service





CENVAT CREDIT RULES, 2004:

In terms of CENVAT Credit Rules, 2004 a Service Provider is entitled to claim credit of service tax paidon” Input Services”, as well as duty paid on” Inputs” and “Capital Goods” received and used in

relation to provision of output taxable services.

activities in relation to delivery of goods on hire purchase or any system of payments by installments - Section 66E(g)

NATURE OF SERVICEAny Service provided in relation to finance leasing shall include

d. Services are provided or agreed to provided to another persone. Services are provided by any other person andf. Such services are in relation to finance leasing of goods, delivery of goods on hire purchase or

on installment basis viz. financing charges by way of interest, lease management fee,

processing fee, documentation charges, administrative fees, etc


1. Liability under Reverse Charge:However, wherever the service provider is located outside the taxable territory but the service is beingprovided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICE RULES, 2012

The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.

The ‘Export of Service Rules’ 2005 and ‘Taxation of Services (Provided from outside India and receivedin India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules’ 2012.

In this regard, Place of Provision of Services Rules’ 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to beprovided.

As per the proposed Rule 4 of the Place of Provision of Service Rules, 2012, place of provision of suchservice shall be the place where the service are performed, irrespective of where the provider orreceiver is located – D.O.F No. 334/1/2012- TRU dated 16.03.2012

CLARIFICATIONS BY DEPARTMENTDepartment vide its Circular No. DOF No. 334/1/2012-TRU New Delhi, dated 16 th March , 2012 hasclarified the service which is as follows :-

Is the delivery of goods on hire purchase of any system of payment by installments taxable?




No. The delivery of goods on hire purchase or any system of payment on installment is not chargeableto service tax because as per Article 366(29A) of the Constitution of India such delivery of goods isdeemed to be a sale of goods. However activities or services provided in relation to such delivery ofgoods are covered in this declared list entry. – D.O.F No. 334/1/2012- TRU dated 16.03.2012

If delivery of goods on hire purchase or any system of payment on installment is deemed to be saleof goods what are the activities in relation to such delivery which are covered in the declaredservice?It has been held by Supreme court in the case of Association Of Leasing & Financial ServiceCompanies Vs Union Of India [2010 (20) S.T.R. 417 (S.C.)] that in equipment leasing/hire-purchaseagreements there are two different and distinct transactions, viz., the financing transaction and theequipment leasing/hire-purchase transaction and that the financing transaction, consideration forwhich was represented by way of interest or other charges like lease management fee, processing fee,documentation charges and administrative fees, which is chargeable to service tax. Therefore, suchfinancial services that accompany a hire-purchase agreement fall in the ambit of this entry of declaredservices – D.O.F No. 334/1/2012- TRU dated 16.03.2012

SPECIFIC EXEMPTION 1. Exemption is provided vide Notification No. 12/2012 dated 17th March 2012, to services by way ofgiving on hire to -

1. State transport undertaking, a motor vehicle meant to carry more than twelve passengers; or2 Goods transport agency, a means of transportation of goods

2. Abatement of 10% from the value of taxable service is provided vide Notification No. 13/2012 dated17th March 2012,

VALUATION OF SERVICE1. Determination of Value of taxable service depends on mode of consideration as exhibited in

the following table:-

Sl.No.

RelevantSection






3. 67(1)(iii) Not ascertainable Equivalent to the gross amount charged to providesimilar service to any other person in the ordinary courseof trade and the gross amount charged is the soleconsideration.

Where the value cannot be determined in aforesaidmanner, equivalent money value of such considerationwhich shall, in no case be less than the cost of provisionof such taxable service

4 67(2) Where the gross amount charged is inclusive of service tax payable or where theservice recipient does not make payment of service tax charged due to any




reason, amount realised shall be treated as inclusive of service tax.


6. 67A Value of taxable service shall be the value as applicable at the time when taxable

service has been provided or agreed to be provided.


Service portion in the execution of a work contract- Section 66E(h)

DEFINITIONS- "works contract" means a contract wherein transfer of property in goods involved in the execution ofsuch contract is leviable to tax as sale of goods and such contract is for the purpose of carrying out

construction, erection, commissioning, installation, completion, fitting out, improvement, repair,renovation, alteration of any building or structure on land or for carrying out any other similar activityor a part thereof in relation to any building or structure on land- Section 65B(54)

NATURE OF SERVICEAny service provided in execution of "works contract" means a contract wherein transfer of propertyin goods involved in the execution of such contract is leviable to tax as sale of goods and such contractis for the purpose of carrying out

1. Construction,

2. Erection, commissioning, installation,

3. Completion, fitting out, improvement, repair, renovation, alteration of any building orstructure on land

4. For carrying out any other similar activity or a part thereof in relation to any building orstructure on land

PERSON RESPONSIBLE FOR PAYMENT OF SERVICE TAXService tax is required to be paid on the service provided by any person to another in the taxableterritory where taxable territory means territory to which provision of chapter-V of the Finance Act,1994 apply i.e. whole of India excluding Jammu & KashmirLiability under Reverse Charge:However, wherever the service provider is located outside the taxable territory but the service is beingprovided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICES RULES, 2012

The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.The ‘Export of Services, Rules, 2005’ and ‘Taxation of Services (Provided from outside India andreceived in India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules, 2012’.




In this regard, Place of Provision of Services Rules, 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to beprovided.As per the proposed Rule 5 of the Place of Provision of Services Rules, 2012, place of provision of

‘service in execution of Work Contract’ provided in relation to immovable property shall be the placewhere the immovable property (land or building) is located, irrespective of where the provider orreceiver is located. -DO.F. No 334/1/2012-TRU dated 16.03.2012.


Would labour contracts in relation to a building or structure treated as a works contract?No. Labour Contracts do not fall in the definition of works contract. It is necessary that there should betransfer of property in goods involved in the execution of such contract which is leviable to tax as saleof goods. Pure labour contracts are therefore not works contracts and would be leviable to service tax

like any other service and on full value. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

Would contracts for tailoring of clothes or development of photographs also be treated as workscontracts as these are also for carrying out a particular work?No. The phrase used is ‘works contract’ and not work contract. ‘Works’ has a defined and acceptedlegal meaning. As per Black’s Law dictionary ‘works’ means ‘buildings or structures on land’.Moreover works contract has been defined in the Act as contract for carrying our specified activity,like construction, erection, commissioning, installation, completion, fitting out, improvement, repair,renovation, alteration etc., or a part thereof in relation to any building or structure on land. Thereforecontracts which do not pertain to building or structures on land would be out of the ambit of workscontract. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

Would contracts for construction of a pipe line or conduit be covered under works contract?Yes. As pipeline or conduits are structures on land contracts for construction of such structure wouldbe covered under works contract. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

Would contracts for erection commissioning or installation of plant, machinery, equipment orstructures, whether prefabricated or otherwise be treated as a works contract?Such contracts would be treated as works contracts if –

• Transfer of property in goods is involved in such a contract; and

• The machinery equipment structures are attached or embedded to earth after erectioncommissioning or installation.

-DO.F. No 334/1/2012-TRU dated 16.03.2012.

What is the scope of ‘building or structure on land?

Buildings and structures on land means not only buildings or structures attached to earth but alsothings permanently fastened to a building or structure attached to earth. -DO.F. No 334/1/2012-TRUdated 16.03.2012.




Would contracts for painting of a building, repair of a building, renovation of a building, walltiling, flooring be covered under ‘works contract’?Yes, if such contracts involve provision of materials as well. -DO.F. No 334/1/2012-TRU dated16.03.2012.

SPECIFIC EXEMPTIONExemptions provided vide Notification No. 12/2012 dated 17th March 2012:1. Services provided to the Government or local authority by way of erection, construction,

maintenance, repair, alteration, renovation or restoration of –(a) a civil structure or any other original works meant predominantly for a non-industrial ornon-commercial use;(b) a historical monument, archaeological site or remains of national importance, archaeologicalexcavation, or antiquity specified under Ancient Monuments and Archaeological Sites andRemains Act, 1958 (24 of 1958);(c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art orcultural establishment;(d) canal, dam or other irrigation works;

(e) pipeline, conduit or plant for (i) drinking water supply (ii) water treatment (iii) seweragetreatment or disposal; or(f) a residential complex predominantly meant for self-use or the use of their employees or otherpersons specified in the Explanation 1 to clause 44 of section 65 B.

2. Services provided by way of erection, construction, maintenance, repair, alteration, renovationor restoration of,-(a) road, bridge, tunnel, or terminal for road transportation for use by general public;(b) building owned by an entity registered under section 12 AA of the Income tax Act, 1961(43of 1961) and meant predominantly for religious use by general public;(c) pollution control or effluent treatment plant, except located as a part of a factory; or(d) electric crematorium;

3. Services by way of erection or construction of original works pertaining to,-(a) airport, port or railways;

(b) single residential unit otherwise as a part of a residential complex;

(c) low- cost houses up to a carpet area of 60 square metres per house in a housing projectapproved by competent authority empowered under the ‘Scheme of Affordable Housing inPartnership’ framed by the Ministry of Housing and Urban Poverty Alleviation, Government ofIndia;

(d) post- harvest storage infrastructure for agricultural produce including a cold storages forsuch purposes; or

(e) mechanised food grain handling system, machinery or equipment for units

VALUATION OF SERVICE1. Determination of Value of taxable service depends on mode of consideration as exhibited in thefollowing table:-

Sl.No.

RelevantSection



1. 67(1)(i) Wholly in money Gross Amount charged by the service provider for such




service provided or to be provided by him.

2. 67(1)(ii) Not wholly or partlyconsisting in moneyi.e. wholly or partly

in kind






2. Rule 2A of Service Tax (Determination of Value) Rules, 2006 as amended by Finance Bill 2012vide Notification No. 11/2012 dated 17.03.2012:

A simplified manner for determining the value of service portion of a works contract from the totalworks contract is given in Rule 2A of the Service Tax (Determination of Value) Rules, 2006 ( whichwill be amended partially for the negative list). In brief the value of the service portion is the grossamount charged for the works contract less the value of transfer of property in goods involved in theexecution of the said works contract.

Gross amount includes Gross amount does not include

Labour charges for execution of the works Value of transfer of property in goods involvedin the execution of the said works contract.Note:Where Value Added Tax has been paid on theactual value of transfer of property in goodsinvolved in the execution of the works contract,then such value adopted for the purposes ofpayment of Value Added Tax, shall be taken asthe value of transfer of property in goodsinvolved in the execution of the said workscontract.

Amount paid to a sub-contractor for labour andservices

Charges for planning, designing and architect’sfees

Charges for obtaining on hire or otherwise,machinery and tools used for the execution ofthe works contract

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

Cost of establishment of the contractor relatableto supply of labour and services and othersimilar expenses relatable to supply of labourand service.

Value Added Tax (VAT) or sales tax, as the casemay be, paid, if any, on transfer of property ingoods involved in the execution of the saidworks contract.

Profit earned by the service provider relatable tosupply of labour and services.




-DO.F. No 334/1/2012-TRU dated 16.03.2012.

Is there any simplified scheme for determining the value of service portion in a works contract?Yes. The scheme will be contained in the revised Rule 2A of the Service Tax (Determination of Value)

Rules, 2006. As per this scheme the value of the service portion, where value has not been determinedin the manner as explained above, shall be determined in the manner explained in the table below -

Where works contract is for… Value of the service portion shall be…

(i) execution of original works forty percent of the total amount charged for theworks contract

(ii) execution of original works and the grossamount charged includes the value of land

twenty five per cent of the total amount charged including such gross amount

(iii) works contracts, other than contracts forexecution of original works, including contractsfor completion and finishing services such asglazing, plastering, floor and wall tiling,installation of electrical fittings.

sixty percent of the total amount charged for theworks contract

Important- ‘total amount’ referred to in the second column of the table above would be the sum totalof gross amount and the value of all goods and services supplied free of cost for use in or in relation tothe execution of works contract, under the same contract or any other contract and, in case of (ii) inthe table above, including the value of land charged as a part of the total consideration. -DO.F. No334/1/2012-TRU dated 16.03.2012

What are ‘’original works’?Original works’ means:

• all new constructions;

• all types of additions and alterations to abandoned or damaged structures on land that arerequired to make them workable.

-DO.F. No 334/1/2012-TRU dated 16.03.2012

How is the value of goods or services supplied free of cost be determined to arrive at the totalamount charged for a works contract?If the value of goods and services supplied free of cost for use in or in relation to execution of a workscontract is not ascertainable, the same shall be determined on the basis of the fair market value of thegoods or services that have close resemblance to goods made available. -DO.F. No 334/1/2012-TRUdated 16.03.2012

3. Composition Scheme for Payment of Service Tax by Service Providers Providing Services inExecution Of Works Contract. A composition scheme has been introduced for service providers providing services in execution ofworks contract. However, according to explanation to Rule 3(1) of Works Contract (CompositionScheme for Payment of Service Tax) Rules 2007, the gross amount of works contract shall not includeValue Added Tax (VAT) or sales tax, as the case may be, paid on transfer of property in goodsinvolved in the execution of the said works contract.

Further vide Finance Bill 2012 vide Notification No. 10/2012 dated 17.03.2012, has enhanced the rate oftax under the composition scheme from 4% to 4.8 % w.e.f.01.04.2012.





CLARIFICATION BY DEPARTMENT

Is duty paid on any goods, property in which is transferred (whether as goods or in some otherform) in the execution of works contract, available as Cenvat credit?No, such Cenvat credit is not available, irrespective of the fact that the value of service portion inexecution of the works contract is determined in the manner explained above, since such goods are notinputs for the service provided. However, the goods not forming part of such transfer will be eligiblefor input tax credit subject to the provisions of the Cenvat credit rules, 2004 including the provisionsrelating to reversal of credits contained in rule 6 of the said rules. -DO.F. No 334/1/2012-TRU dated16.03.2012

Service Portion In An Activity Wherein Goods, Being Food Or Any Other Article Of Human

Consumption Or Any Drink (Whether Or Not Intoxicating) Is Supplied In Any Manner As A Part Of The Activity.- Section 66E(i)

NATURE OF SERVICEService wherein- goods, being food or any other article of human consumption or- any drink (whether or not intoxicating) is supplied in any manner as a part of the activity.

PERSON RESPONSIBLE FOR PAYMENT OF SERVICE TAXService tax is required to be paid on the service provided by any person to another in the taxableterritory where taxable territory means territory to which provision of chapter-V of the Finance Act,1994 apply i.e. whole of India excluding Jammu & KashmirLiability under Reverse Charge:However, wherever the service provider is located outside the taxable territory but the service is beingprovided in taxable territory, in terms of Place of Provision of Services Rules, 2012, the tax will becollected from the service receiver.

PLACE OF PROVISION OF SERVICES RULES, 2012 The new charging section, section 66B, enables taxation of only such services as are provided in taxableterritory. Thus, services that are provided in a non-taxable territory are not chargeable to service tax.The ‘Export of Services, Rules, 2005’ and ‘Taxation of Services (Provided from outside India andreceived in India) Rules, 2006 will be replaced by the ‘Place of Provision of Services Rules, 2012’.In this regard, Place of Provision of Services Rules, 2012 determine the location of provision ofservices. In other words, such rules will determine the place where a service shall be deemed to be

provided.

As per the proposed Rule 4 of the Place of Provision of Services Rules, 2012, place of provision of suchservice shall be the place where the services are performed. -DO.F. No 334/1/2012-TRU dated16.03.2012.




CLARIFICATION BY DEPARTMENT

In a Circular bearing No.334/1/2012- TRU dated 16.03.2012 the department has clarified as under:

Service portion in an activity wherein goods, being food or any other article of human consumptionor any drink (whether or not intoxicating) is supplied in any manner as part of the activity

In terms of article 366(29A) of the Constitution of India supply of any goods, being food or any other article of human consumption or any drink (whether or not intoxicating) in any manner as part of a service for cash,deferred payment or other valuable consideration is deemed to be a sale of such goods. Such a service thereforecannot be treated as service to the extent of the value of goods so supplied. The remaining portion however constitutes a service. It is a well settled position of law, declared by the Supreme Court in BSNL‘s case[2006(2)STR161(SC)] , that such a contract involving service along with supply of such goods can be dissectedinto a contract of sale of goods and contract of provision of service. This declared list entry is has beenincorporated to capture this position of law in simple terms.

What are the activities covered in this declared list entry?The following activities are illustration of activities covered in this entry-

• Supply of food or drinks in a restaurant;

• Supply of foods and drinks by an outdoor caterer.

-DO.F. No 334/1/2012-TRU dated 16.03.2012.

Are services provided by any kind of restaurant, big or small, covered in this entry?

Yes. Although services provided by any kind of restaurant are covered in this entry, the emphasis is tolevy tax on services provided by only such restaurants where the service portion in the total supply issubstantial and discernible. Thus the following category of restaurants are exempted –

• Services provided in relation to serving of food or beverages by a restaurant, eating joint or amess, other than those having the facility of air-conditioning or central air-heating in any part

of the establishment, at any time during the year, and which has a license to serve alcoholicbeverage.

• Below the threshold exemption –-DO.F. No 334/1/2012-TRU dated 16.03.2012.

SPECIFIC EXEMPTION

Exemptions provided vide Notification No. 12/2012 dated 17th March 2012:Exemption has been provided to services provided in relation to serving of food or beverages by arestaurant, eating joint or a mess, other than those having the facility of air-conditioning or central air-heating in any part of the establishment, at any time during the year, and which has a licence to servealcoholic beverages; -DO.F. No 334/1/2012-TRU dated 16.03.2012.


1. Determination of Value of taxable service depends on mode of consideration as exhibited in thefollowing table:-

Sl. Relevant Mode of Value of Taxable Service




No. Section Consideration


2. 67(1)(ii) Not wholly or partly

consisting in moneyi.e. wholly or partlyin kind

Amount charged and equivalent money value of

consideration in kind with the addition of service taxcharged

3. 67(1)(iii) Not ascertainable Equivalent to the gross amount charged to providesimilar service to any other person in the ordinary courseof trade and the gross amount charged is the soleconsideration.Where the value cannot be determined in aforesaidmanner, equivalent money value of such considerationwhich shall, in no case be less than the cost of provisionof such taxable service




2. Rule 2C of Service Tax (Determination of Value) Rules, 2006 as inserted by Finance Bill 2012 videNotification No. 11/2012 dated 17.03.2012A simplified manner for determining the value of service portion of such service is given in Rule 2C of

the Service Tax (Determination of Value) Rules, 2006. Further the same has been clarified as under:

How is the value of service portion to be determined?The manner of determination of service portion in such an activity is very simple and is proposed to begiven in Rule 2C of the the Service Tax (Determination of Value) Rules, 2006 (as amended for thenegative list). In terms of the said rule value of the service portion shall be determined in the followingmanner-

Value of service portion Shall be percentage of the total amount charged:

In a restaurant 40

By an outdoor caterer 60

Important - ‘Total amount’ referred to in the second column of the table above would be the sum totalof gross amount and the value of all goods supplied free of cost for use in or in relation to the supplyof food or any other article of human consumption or any drink, under the same contract or any othercontract. -DO.F. No 334/1/2012-TRU dated 16.03.2012.

What are the restrictions, if any, on availment of Cenvat credit by such service providers?In terms of the Explanation2 to the proposed valuation rules any goods meant for human consumptionclassifiable under chapters 1 – 22 of Central Excise Tariff are not ‘inputs’ for provision of such service.Cenvat Credit is, therefore, not available on these items. Availability of Cenvat credit on other inputs,input services and capital goods would be subject to the provisions of the Cenvat Credit Rules, 2004




including the provisions relating to reversal of credits contained in rule 6 of the said rules. -DO.F. No334/1/2012-TRU dated 16.03.2012.


*******




NEGATIVE LIST OF SERVICES

INTRODUCTION

Negative list of service has been proposed to be introduced vide Finance Bill, 2012. Negative list isdefined under Section 65B (34) of Finance Bill, 2012 which is reproduced as under:

"Negative list" means the services which are listed in section 66D - Section 65B (34)

There are 17 services listed as negative list of services which are given as under:

SERVICES PROVIDED BY GOVERNMENT OR LOCAL AUTHORITY – Section 66D(a)

Services by Government or a Local Authority excluding the following services to the extent they arenot covered elsewhere –

(i) services by the Department of Posts by way of speed post, express parcel post, life insurance andagency services provided to a person other than Government;

(ii) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport;

(iii) transport of goods or passengers; or

(iv) support services, other than services covered under clauses (i) to (iii) above, provided to businessentities; - Section 66D(a)

DEFINITIONS

-"Local Authority" means-

(a) a Panchayat as referred to in clause (d) of article 243 of the Constitution;

(b) a Municipality as referred to in clause (e) of article 243P of the Constitution;

(c) a Municipal Committee and a District Board, legally entitled to, or entrusted by the Governmentwith, the control or management of a municipal or local fund;

(d) a Cantonment Board as defined in section 3 of the Cantonments Act, 2006;

(e) a regional council or a district council constituted under the Sixth Schedule to the Constitution;

(f) a development board constituted under article 371 of the Constitution; or

(g) a regional council constituted under article 371A of the Constitution;- Section 65B (31)




-"Aircraft" has the meaning assigned to it in clause (1) of section 2 of the Aircraft Act, 1934; - Section65B (7)

-"Port" has the meaning assigned to it in clause (q) of section 2 of the Major Port Trusts Act, 1963 or in

clause (4) of section 3 of the Indian Ports Act, 1908; - Section 65B (38)

-"Airport" has the meaning assigned to it in clause (b) of section 2 of the Airports Authority of IndiaAct, 1994; - Section 65B (8)

-"Support Services" means infrastructural, operational, administrative, logistic, marketing or anyother support of any kind comprising functions that entities carry out in ordinary course of operationsthemselves but may obtain as services by outsourcing from others for any reason whatsoever and shallinclude advertisement and promotion, construction or works contract, renting of immovable property,security, testing and analysis; - Section 65B (49)

IMPORTANT FEATURES OF THIS NON-TAXABLE SERVICE ARE AS UNDER:-

Department vide its letter F. No 334/1/2012-TRU dated 16.03.2012 provides the following clarificationwith respect to the above mentioned non taxable service:

4.1 Services provided by Government or Local Authority

4.1.1 Are all services provided by Government or Local Authority covered in the negative list?

No. Most services provided by the Central or State Government or Local authorities are in the negative

list except the following:

a) services provided by the Department of Posts by way of speed post, express parcel post, life

insurance and agency services carried out on payment of commission on non government

business;

b) services in relation to a vessel or an aircraft inside or outside the precincts of a port or an airport;

c) transport of goods and/or passengers;

d) support services, other than those covered by clauses (a) to (c) above, to business entities.

4.1.2 Would the taxable services provided by the Government be charged to tax if they are

otherwise exempt or specified elsewhere in the negative list?

No. If the services provided by the government or local authorities that have been excluded from the

negative list entry are otherwise specified in the negative list then such services would also not be

taxable.

4.1.3 ‘Government’ has not been defined in the Act. What is the meaning of Government?




Since ‘Government’ has not been defined in the Act, the definition of ‘Government’ as contained in the

General Clauses Act, 1897 would be applicable as per which ‘Government’ includes both State

Government and Central Government. Further as per the General Clause Act 1897, State includes

Union Territory.

4.1.4 Are various corporations formed under Central Acts or State Acts or various government

companies registered under the Companies Act, 1956 or autonomous institutions set up by a special

Acts covered under the definition of ‘Government’?

No. In terms of the definition of ‘Government’ as contained in the General Clause Act, 1857 and as per

the settled position of law such corporations or authorities or companies are not included in the

definition of ‘Government’. Services provided by such entities would, therefore, not be entitled to the

negative list entry relating to the ‘Government’. It would also not include regulatory bodies.

4.1.5 What entities are then covered under ‘Government’?

‘Government’ would include various departments and offices of the Central or State Government or

the U.T. Administrations which carry out their functions in the name and by order of the President of

India or the Governor of a State.

4.1.6 Would a department of the Government need to get itself registered for each of the serviceslisted in answer to Q. No.4.1.1 above?

For the support services provided by the Government to business entities government departmentswill not have to get registered because service tax will be payable on such services by the servicereceiver i.e. the business entities receiving the service under reverse charge mechanism in terms of theprovisions of section 68 of the Act and the notification proposed to be issued under the said section.For services mentioned at (a) to (c) of the list (point 4.1.1 above refers) tax will be payable by theconcerned department.

4.1.7 What is the meaning of “support services” which appears to be a phrase of wide ambit?

Support services have been defined in section 65B of the Act as ‘infrastructural, operational,administrative, logistic marketing or any other support of any kind comprising functions that entitiescarry out in ordinary course of operations themselves but may obtain as services by outsourcing fromothers for any reason whatsoever and shall include advertisement and promotion, construction orworks contract, renting of movable or immovable property, security, testing and analysis’. Thusservices which are provided by government in terms of their sovereign right to business entities arenot support services e.g. grant of mining or licensing rights.

COMMENTS FROM THE AUTHOR:Any service provided or agreed to be provided to another person by state government or centralgovernment or any local authority shall be covered under the negative list of services and thereforenot subject to levy of service tax.




However, the services provided by the Department of Posts by way of speed post, express parcel post,

life insurance and agency services carried out on payment of commission on non government business

or in relation to a vessel or an aircraft inside or outside the precincts of a port or an airport or in

relation to transport of goods and/or passengers or support services to business entities, are keptoutside the list of negative services and therefore, attract the levy of service tax.

Further, the services in relation to the support services defined under section 65B (49) of the act shallbe taxable in the hand of the recipient under reverse charge mechanism.

SERVICES PROVIDED BY RESERVE BANK OF INDIA – Section 66D(b)

DEFINITIONS

-"Reserve Bank of India” means the bank established under section 3 of the Reserve Bank of India

Act, 1934 - Section 65B (42).



4.2 Services provided by Reserve Bank of India

4.2.2 What about services provided to the Reserve Bank of India?

Services provided to the Reserve Bank of India are not in the negative list and would be taxable unless

otherwise covered in any other entry in the negative list.

COMMENTS FROM THE AUTHOR:

Any service provided or agreed to be provided to another person by Reserve Bank of India arecovered under the negative list of services and therefore, not attract the levy of service tax.

SERVICES BY A FOREIGN DIPLOMATIC MISSION LOCATED IN INDIA – Section 66D(c)



4.3 Services by a foreign diplomatic mission located in India

Any service that is provided by a diplomatic mission of any country located in India are in thenegative list. This entry does not cover services, if any, provided by any office or establishment of aninternational organization.





Any service provided or agreed to be provided to any person by foreign diplomatic mission located inIndia are covered under the negative list of services and therefore does not attract the levy of service

tax.

However, the services provided by any office or establishment of an international organization arekept outside the list of negative services and therefore, attract the levy of service tax.

SERVICE IN RELATION TO AGRICULTURE – SECTION 66D(d)

Services relating to agriculture by way of—

(i) agricultural operations directly related to production of any agricultural produce includingcultivation, harvesting, threshing, plant protection or seed testing;

(ii) supply of farm labour;

(iii) processes carried out at an agricultural farm including tending, pruning, cutting, harvesting,drying, cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulkpackaging and such like operations which do not alter the essential characteristics ofagricultural produce but make it only marketable for the primary market;

(iv) renting or leasing of agro machinery or vacant land with or without a structure incidental toits use;

(v) loading, unloading, packing, storage or warehousing of agricultural produce;

(vi) agricultural extension services;

(vii) services by any Agricultural Produce Marketing Committee or Board or services provided bya commission agent for sale or purchase of agricultural produce - Section 66D(d).

DEFINITIONS

-"Agriculture" means the cultivation of plants and rearing of all life-forms of animals, except therearing of horses, for food, fibre, fuel, raw material or other similar products- Section 65B(3).

-"Agricultural extension" means application of scientific research and knowledge to agriculturalpractices through farmer education or training - Section 65B (4).

-"Agricultural produce" means any produce of agriculture on which either no further processing isdone or such processing is done as is usually done by a cultivator or producer which does not alter itsessential characteristics but makes it marketable for primary market - Section 65B(5).




-"Agricultural Produce Marketing Committee or Board" means any committee or board constitutedunder a State law for the time being in force for the purpose of regulating the marketing of agriculturalproduce - Section 65B(6).

IMPORTANT FEATURES OF THIS NON - TAXABLE SERVICE ARE AS UNDER:

Clarification by the department: Department vide its letter bearing no. D. O. F. No 334/1/2012-TRU

dated 16.03.2012 has clarified as under:

4.4 Services relating to agriculture

4.4.1 What is the meaning of ‘agriculture’?

‘Agriculture’ has been defined in the Act as cultivation of plants and rearing or breeding of animals

and other species of life forms for foods, fibre, fuel, raw materials or other similar products but does

not include rearing of horses.

4.4.2 Are activities like breeding of fish (pisciculture), rearing of silk worms (sericulture),

cultivation of ornamental flowers (floriculture) and horticulture, forestry included in the definition

of agriculture?

Yes. These activities are included in the definition of agriculture.

4.4.3 What is the meaning of agricultural produce?

Agricultural produce has also been defined in section 65B of the Act which means any produce of

agriculture on which either no processing is done or such processing is done as is usually done by a

cultivator or producer which does not alter its essential characteristics but makes it marketable for

primary market. It also includes specified processes in the definition like tending, pruning, grading,

sorting etc. which may be carried out at the farm or elsewhere as long as they do not alter the essential

characteristics.

4.4.4 Would plantation crops like rubber, tea or coffee be also covered under agricultural produce?

Yes. Such plantation crops are also covered under agricultural produce.

4.4.5 Would potato chips or tomato ketchup qualify as agricultural produce?

No. In terms of the definition of agricultural produce, only such processing should be carried out as is

usually done by cultivator producers which does not alter its essential characteristics but makes itmarketable for primary market. Potato chips of tomato ketchup are manufactured through processes

which alter the essential characteristic of farm produce (potatoes and tomatoes in this case).

4.4.6 Would leasing of vacant land with a green house or a storage shed meant for agricultural

produce be covered in the negative list?




Yes. In terms of the specified services relating to agriculture ‘leasing’ of vacant land with or without

structure incidental to its use’ is covered in the negative list. Therefore, if vacant land has a structure

like storage shed or a green house built on it which is incidental to its use for agriculture then its lease

would be covered under the negative list entry.

4.4.8 What are the services referred to in the negative list entry pertaining to Agricultural Produce

Marketing Committee or Board?

Agricultural Produce Marketing Committees or Boards are set up under a State Law for purpose of

regulating the marketing of agricultural produce. Such marketing committees or boards have been set

up in most of the States and provide a variety of support services for facilitating the marketing of

agricultural produce by provision of facilities and amenities like shops, sheds, water, light, electricity,

grading facilities etc. They also take measures for prevention of sale or purchase of agricultural

produce below the minimum support price. APMCs collect market fees, license fees, rents etc. Services

provided by such Agricultural Produce Marketing Committee or Board are covered in the negative

list.


There has always been intention of the legislature and efforts from the side of the revenue to keep theactivities in or in relation to agriculture out of the purview of service tax. The said intention of thelegislature is also being followed in the Finance Bill, 2012 by introducing the activities in or in relationto agriculture outside the purview of service tax. A wide scope of activities related to agriculture isbeing covered under the said negative services. Though a wide coverage of agricultural activities isintended in the negative list of services, however these are covered to an extent of such activities whichdoes not alter the essential characteristics of such agricultural produce.

Further extending the scope of the term ‘agriculture’, rearing or breeding of animals and other species

of life forms for foods, fibre, fuel, raw materials or other similar products is also included in the

definition of agriculture and thus, the same are also outside the purview of service tax. However,

rearing of horses has been excluded from such definition meaning thereby that rearing of horses is

covered under the service tax net subject to other provision of Finance Act, 1994.

TRADING OF GOODS – SECTION 66D(e)

DEFINITIONS

-"Goods" means every kind of movable property other than actionable claim and money; and includessecurities, growing crops, grass, and things attached to or forming part of the land which are agreed tobe severed before sale or under the contract of sale - Section 65B (25).

-"Money" means Indian legal tender, cheque, promissory note, bill of exchange, letter of credit, draft,pay order, traveller cheque, money order, postal or electronic remittance or any such similarinstrument when used as consideration to settle an obligation or exchange with Indian legal tender of




another denomination but shall not include any currency that is held for its numismatic value;-Section

65B(33).

IMPORTANT FEATURES OF THIS NON TAXABLE SERVICE ARE AS UNDER:

Department vide its letter F. No 334/1/2012-TRU dated 16.03.2012 provides the following clarificationwith respect to the above mentioned non taxable service, i.e. Trading of Goods:

4.5 Trading of goods

4.5.1 Would activities of a commission agent or a clearing and forwarding agent who sells goods onbehalf of another for a commission be included in trading of goods?

No. The services provided by commission agent or a clearing and forwarding agent are not in thenature of trading of goods. These are auxiliary for trading of goods. In terms of the provision of clause(1) of section 66F reference to service does not include reference to a service used for providing suchservice. Moreover the title in the goods never passes on to such agents to come within the ambit of

trading of goods.

4.5.2 Would future contracts in commodities be covered under trading of goods?

Yes. Futures contracts would be covered under trading of goods as these are contracts which involvetransfer of title in goods on a future date at a pre-determined price.

4.5.3 Would commodity futures be covered under trading of goods?

Yes. In commodity futures actual delivery of goods does not normally take place and the purchaserunder a futures contract normally offsets all obligations or closes out by selling an equal quantity ofgoods of the same description under another contract for delivery on the same date. There are,therefore, two contracts of sale/purchase involved which would fall in the category of trading of

goods.

4.5.4 Would auxiliary services relating to future contracts or commodity futures be covered in thenegative list entry relating to trading of goods?

No. Such services provided by commodity exchanges clearing houses or agents would not be coveredin the negative list entry relating to trading of goods.


Transfer of title of goods is one of the essential conditions for a transaction to come under the ambit ofTrading of Goods. Moreover, the services supporting or ancillary to the trading of Goods would notcome under the above item of Negative List. Thus the department has excluded the activities ofcommission agent or a clearing and forwarding agent who sells goods on behalf of another for acommission and auxiliary services relating to future contracts or commodity futures from the Tradingof Goods with the intention of bringing the aforementioned activities under the service tax levy.







“Any process amounting to manufacture of excisable good” has always been kept outside the ambit

of service tax. Prior to the proposed amendment also, it was excluded from the definition of the

taxable services of ‘Business Auxiliary Service’. Thus, the intention of the legislature is to avoid the

double taxation since the same amount cannot be taxed under both Finance Act, 1994 and the Central

Excise Act, 1944.

SALE OF SPACE OR TIME FOR ADVERTISEMENT SERVICES – SECTION 66D(g)

Selling of space or time slots for advertisements other than advertisements broadcast by radio ortelevision - Section 66D (g).

DEFINITIONS

"Actionable claim" shall have the meaning assigned to it in section 3 of the Transfer of Property Act,1882 –Section 65B (1).

"Advertisement" means any form of presentation for promotion of, or bringing awareness about, anyevent, idea, immovable property, person, service, goods or actionable claim through newspaper,television, radio or any other means but does not include any presentation made in person – Section65B(2).




4.7 Selling of space or time slots for advertisements other than advertisements broadcast by radio or

television

4.7.1 Sale of space of time for advertisements not including sale of space for advertisement in print

media and sale of time by a broadcasting agency or organization is currently taxed under clause

(zzzm) of sub-section (105) of the Finance Act,1944. So what kind of sale of space or time would

become taxable and what would be not taxable?

Taxable Non-taxable

Sale of space or time for advertisement to be

broadcast on radio or television

Sale of space for advertisement in print media

Sale of time slot by a broadcasting organization. Sale of space for advertisement in bill boards,

public places, buildings, conveyances, cellphones, automated teller machines, internet

Aerial advertising




4.7.2 Would services provided by advertisement agencies relating to preparation of advertisements

be covered in the negative list entry relating to sale of space for advertisements?

No. Services provided by advertisement agencies relating to making or preparation of advertisements

would not be covered in this negative list entry and would thus be taxable. This would also not cover

commissions received by advertisement agencies from the broadcasting or publishing companies for

facilitating business, which may also include some portion for the preparation of advertisement.

4.7.3 In case a person provides a composite service of providing space for advertisement that is

covered in the negative list entry coupled with taxable service relating to design and preparation of

the advertisement how will its taxability be determined?

• This would be a case of bundled services taxability of which has to be determined in terms of

the principles laid down in section 66F of the Act.

• Bundled services have been defined in the said section as provision of one type of servicewith another type or types of services.

• If such services are bundled in the ordinary course of business then the bundle of services

will be treated as consisting entirely of such service which determines the dominant nature of

such a bundle.

• If such services are not bundled in the ordinary course of business then the bundle of services

will be treated as consisting entirely of such service which attracts the highest liability of

service tax.


Sale of space or time slots for advertisements is proposed to be covered under the negative list of

services excluding the following:

Sale of space or time for advertisement to be broadcast on radio or television; or

Sale of time slot by a broadcasting organization.

Thus, the above two exclusions are proposed to be covered under the service tax net subject to

the other provisions of Finance Act, 1994.

SERVICE BY WAY OF ACCESS TO A ROAD OR A BRIDGE ON PAYMENT OF TOLLCHARGES- SECTION 66D(h)

IMPORTANT FEATURES OF THIS NON TAXABLE SERVICE ARE AS UNDER:





4.8 Access to a road or a bridge on payment of toll charges

4.8.1 Is access to national highways or state highways also covered in this entry?

Yes. National highways or state highways are also roads and hence covered in this entry.

4.8.2. Are collection charges or service charges paid to any toll collecting agency also covered?

No. The negative list entry only covers access to a road or a bridge on payment of toll charges. Services

of toll collection on behalf of an agency authorized to levy toll are in the nature of services used for

providing the negative list services. As per the principle laid down in sub section (1) of section 66F of

the Act the reference to a service by nature or description in the Act will not include reference to a

service used for providing such service.


No service tax shall be leviable on the toll charges if the person providing the service by way of access

to road or bridge and such person itself is engaged in collecting the Toll charges. However, if a toll

collecting agency is engaged for collecting the above mentioned toll charges, then the collecting agency

would be liable to pay service tax.

BETTING, GAMBLING OR LOTTERY SERVICES – SECTION 66D(i)

DEFINITIONS

-"Betting or gambling" means putting on stake something of value, particularly money, withconsciousness of risk and hope of gain on the outcome of a game or a contest, whose result may bedetermined by chance or accident, or on the likelihood of anything occurring or not occurring –Section 66D(15).




4.9 Betting, gambling or lottery

4.9.1. Are auxiliary services that are used for organizing or promoting betting or gambling events

also covered in this entry?

No. These services are in the nature of services used for providing the negative list services of betting

or gambling. As per the principle laid down in sub section (1) of section 66F of the Act the reference to




a service by nature or description in the Act will not include reference to a service used for providing

such service.


The service of Betting or gambling are covered under the negative list of services however, the

auxiliary services for organizing or promoting betting or gambling events are not covered in this entry.

ENTERTAINMENT SERVICES – SECTION 66D (j)

Admission to entertainment events or access to amusement facilities - Section 66D (j)

DEFINITIONS

-"Entertainment event" means an event or a performance which is intended to provide recreation,

pastime, fun or enjoyment, by way of exhibition of cinematographic film, circus, concerts, sportingevent, pageants, award functions, dance, musical or theatrical performances including drama, balletsor any such event or programme;- Section 65B (24).

-"Amusement facility" means a facility where fun or recreation is provided by means of rides, gamingdevices or bowling alleys in amusement parks, amusement arcades, water parks, theme parks or suchother places but does not include a place within such facility where other services are provided;-Section 65B (9).

IMPORTANT FEATURES OF THIS NON- TAXABLE SERVICE ARE AS UNDER:-

Clarification by the Department


4.10 Entry to Entertainment Events and Access to Amusement Facilities.

4.10.1 If a cultural programme, drama or a ballet is held in an open garden and not in a theatre

would it qualify as an entertainment event?

Yes. The words used in the definition are ‘theatrical performances’ and not ‘performances in theatres’.

A cultural programme, drama or a ballet preformed in the open does not cease to be a theatrical

performance provided it is preformed in the manner it is preformed in a theatre, i.e. before an

audience.

4.10.2 Would a standalone ride set up in a mall qualify as an amusement facility?

Yes. A standalone amusement ride in a mall is also a facility in which fun or recreation is provided by

means of a ride. Access to such amusement ride on payment of charges would be covered in the

negative list.




4.10.3 Would entry to video parlors exhibiting movies played on a DVD player and displayed

through a TV screen be covered in the entry?

Yes. Such exhibition is an exhibition of cinematographic film.

4.10.4 Would membership of a club qualify as access to an amusement facility?

No. A club does not fall in the definition of an amusement facility.

4.10.5 Would auxiliary services provided by a person, like an event manager, for organizing an

entertainment event or by an entertainer for providing the entertainment to an entertainment event

organizer be covered in this entry?

No. Such services are in the nature of services used for providing the service specified in this negativelist entry and would not be covered in the ambit of such specified service by operation of the rule ofinterpretation contained in clause (1) of section 66F of the Act.

ELECTRICITY TRANSMISSION SERVICES – SECTION 66D (k)

‘Transmission or distribution of electricity by an electricity transmission or distribution utility’-Section66D (k).

DEFINITIONS

-"Electricity transmission or distribution utility" means the Central Electricity Authority; a StateElectricity Board; the Central Transmission Utility or a State Transmission Utility notified under theElectricity Act, 2003; or a distribution or transmission licensee under the said Act, or any other entityentrusted with such function by the Central Government or, as the case may be, the StateGovernment;-Section 65B (23).




4.11 Transmission or distribution of electricity

4.11.2 If charges are collected by a developer or a housing society for distribution of electricity

within a residential complex then are such services covered under this entry?

No. The developer or the housing society would be covered under this entry only if it is entrusted with

such function by the Central or a State government or if it is, for such distribution, a distribution

licensee licensed under the Electricity Act, 2003.




4.11.3 If the services provided by way installation of gensets or similar equipment by private

contractors for distribution of electricity covered by this entry?

No. the entry does not cover services provided by private contractors. Moreover the services providedare not by way of transmission or distribution of electricity.


Charges collected by developer or a housing society for distribution of electricity within a residentialcomplex would not be subject to service tax as electricity has been considered as goods [reference fromSolaris Chemtech Limited- 2007 (214) E.L.T 481(SC)]. Further distribution of electricity by installationof gensets or similar equipment would also not attract service tax as the same is considered as tradingof goods.

SPECIFIED EDUCATION SERVICES – SECTION 66D(l)

Services by way of—

(i) Pre-school education and education up to higher secondary school or equivalent;

(ii) Education as a part of a curriculum for obtaining a qualification recognised by any law for the timebeing in force;

(iii) Education as a part of an approved vocational education course;-Section 66D (l)




4.12 Specified services relating to education

The following services relating to education are specified in the negative list –

• pre-school education and education up to higher secondary school or equivalent

• education as a part of a prescribed curriculum for obtaining a qualification recognized by law

for the time being in force;

• education as a part of an approved vocational education course

4.12.1 Are services provided by international schools giving international certifications like IB also

covered in this entry?




Yes. Services by way of education up to higher secondary school or equivalent are covered in this

entry.

4.12.2 Are services provided by boarding schools covered in this entry?

Boarding schools provide service of education coupled with other services like providing dwelling

units for residence and food. This may be a case of bundled services if the charges for education and

lodging and boarding are inseparable. Their taxability will be determined in terms of the principles

laid down in section 66F of the Act. Such services in the case of boarding schools are bundled in the

ordinary course of business. Therefore the bundle of services will be treated as consisting entirely of

such service which determines the dominant nature of such a bundle. In this case since dominant

nature is determined by the service of education other dominant service of providing residential

dwelling is also covered in a separate entry of the negative list, the entire bundle would be treated as a

negative list service.

4.12.3 Are services provided to educational institutions also covered in this entry?

No. Such services are not covered under the negative list entry. However certain services provided to

educational institutions are separately exempted by a notification:

• Services to an educational institution by way of catering under the centrally assisted mid –

day meals scheme sponsored by government.

• Transport to and fro such exempt institutes.

• Services to or by an institution in relation to educational services, where the educational

services are exempt from the levy of service tax, by way of services in relation to admission to

such education.

4.12.4 Are private tuitions covered in the entry relating to education?

No. However, private tutors can avail the benefit of threshold exemption.

4.12.5 Are services provided by way of education as a part of a prescribed curriculum for obtaining

a qualification recognized by a law of a foreign country covered in the negative list entry?

No. To be covered in the negative list a course should be recognized by an Indian law.

4.12.6 If a course in a college leads to dual qualification only one of which is recognized by law

would the service provided by the college by way of such education be covered in this entry?

Provision of dual qualifications is in the nature of two separate services as the curriculum and fees for

each of such qualifications are prescribed separately. Service in respect of each qualification would,

therefore, be assessed separately. If an artificial bundle of service is created by clubbing two courses




together, only one of which leads to a qualification recognized by law, then by application of the rule

of determination of taxability of a service which is not bundled in the ordinary course of business

contained in section 66F of the Act it is liable to be treated as a course which attracts the highest

liability of service tax. However incidental auxiliary courses provided by way of hobby classes orextra-curricular activities in furtherance of overall well being will be an example of naturally bundled

course. One relevant consideration in such cases will be the amount of extra billing being done for the

unrecognized component viz-a-viz the recognized course.

4.12.7 Are placement services provided to educational institutions for securing job placements for

the students covered in this negative list entry?

No. Such services do not fall in the category of exempt services provided to educational institutions

(please refer to point no 4.12.3 above).

4.12.8 Are services of conducting admission tests for admission to colleges exempt?

Yes in case the educational institutions are providing qualification recognized by law for the time

being in force (please refer to point no 4.12.3 above).

4.12.9 In addition to the services specified in the negative list, which educational services are

exempt if provided by a charitable organization?

Refer Guidance Note No 6.3

6.3 Charities

6.3.1 I am a registered charity. How do I know that activities provided by me are charitable

activities?

You are doing charitable activities if you are registered with income tax authorities for this purpose

under section 12AA the Income Tax Act, 1961 and carry out one or more of the specified charitable

activities. Following are the specified charitable activities:-

(a) public health by way of -

(I) care or counseling of (i) terminally ill persons or persons with severe physical or mental disability,

(ii) persons afflicted with HIV or AIDS, or (iii) persons addicted to a dependence-forming substance

such as narcotics drugs or alcohol; or

(II) public awareness of preventive health, family planning or prevention of HIV infection;

(b) advancement of religion;

(c) advancement of educational programmes or skill development relating to,-




(I) abandoned, orphaned or homeless children;

(II) physically or mentally abused and traumatized persons;

(III) prisoners; or

(IV) persons over the age of 65 years residing in a rural area;

(d) preservation of environment including watershed, forests and wildlife; or

(e) advancement of any other object of general public utility up to a value of twenty five lakh rupees in

a financial year subject to the condition that total value of such activities had not exceeded twenty five

lakh rupees during the preceding financial year.

6.3.2 What is the tax liability of a registered charity on their activities?

If a registered charity is doing any activity falling in negative list of services or otherwise exempt, he is

not required to pay service tax on that activity. In case, where his activity is covered explicitly in any of

the specified charitable activities at ‘a ‘to ‘d’ of the answer to 6.3.1 he is exempt from service tax

without any value limit. For charitable activities mentioned at ‘e’ of the answer to 6.3.1 he is exempt up

to a value of twenty five lakh rupees in a financial year if the total value of such services had not

exceeded twenty five lakh rupees during the preceding financial year. However, if his activity is not

for general public as defined in the notification, he is not eligible for exemption and required to pay

service tax on such activities. General public is defined in the notification as ‘body of people at large

sufficiently defined by some common quality of public or impersonal nature’.

4.12.10 What are the courses which would qualify as an approved vocational education courses?

Approved vocational education courses have been specified in section 65B of the Act. These are –

• a course run by an industrial training institute or an industrial training centre affiliated to the

National Council for Vocational Training, offering courses in designated trades as notified

under the Apprentices Act, 1961(52 of 1961)

• a Modular Employable Skill Course, approved by the National Council of Vocational

Training, run by a person registered with the Directorate General of Employment and

Training, Ministry of Labour and Employment, Government of India;

• a course run by an institute affiliated to the National Skill Development Corporation set up by

the Government of India.

COMMENTS FROM THE AUTHOR:Service provided in respect of unrecognized education is not covered under the negative list even if

person providing such service also engaged in providing recognised education. Therefore, service tax




is to be levied on the value of such unrecognized education. Hence it seems like while a student

pursuing for a recognised course would not have to bear service tax, a student pursuing for

unrecognised course, would have to bear the burnt on service tax.

RENTING OF RESIDENTIAL DWELLINGS – SECTION 66D (m)

NON TAXABLE SERVICE

Services by way of renting of residential dwellings for use as residence’-Section 66D(m).

DEFINITION

-"Renting" means allowing, permitting or granting access, entry, occupation, use or any such facility,wholly or partly, in an immovable property, with or without the transfer of possession or control ofthe said immovable property and includes letting, leasing, licensing or other similar arrangements in

respect of immovable property;- Section 65B(41).


Clarification by the department


4.13.1 What is a ‘residential dwelling’?

The phrase ‘residential dwelling’ has not been defined in the Act. It has therefore to be interpreted interms of the normal trade parlance as per which it is any residential accommodation, but does notinclude hotel, motel, inn, guest house, camp–site, lodge, house boat, or like places meant fortemporary stay.- Circular No.334/1/2012- TRU 16.03.2012.

4.13.2 Would renting of a residential dwelling which is for use partly as a residence and partly fornon residential purpose like an office of a lawyer or the clinic of a doctor be covered under thisentry?

This would also be a case of bundled services as renting service is being provided both for residentialuse and for non residential use. Taxability of such bundled services has to be determined in terms ofthe principles laid down in section 66F of the Act.

4.13.3 Would the nature of renting transactions explained in column 1 of the table below be coveredin this negative list entry?

1 2

If….. Then……

(i) a residential house taken on rent is used onlyor predominantly for commercial or non-residential use.

the renting transaction is not covered in thisnegative list entry.




(ii) if a house is given on rent and the same isused as a hotel or a lodge

the renting transaction is not covered in thisnegative list entry because the person taking iton rent is using it for a commercial purpose.

(iii) rooms in a hotel or a lodge are let out

whether or not for temporary stay

the renting transaction is not covered in this

negative list entry because a hotel or a lodge isnot a residential dwelling.

(iv) government department allots houses to itsemployees and charges a license fee

such service would be covered in the negativelist entry relating to services provided bygovernment and hence non- taxable.

(v) furnished flats given on rent for temporarystay

these are in the nature of lodges or guesthouses and hence not treatable as a residentialdwelling


Service provided by any person to another person by way of renting of residential dwellings for use as

residence (i.e. any residential accommodation but does not include hotel, motel, inn, guest house,camp–site, lodge, house boat, or like places meant for temporary stay) is excluded from the ambit ofFinance Act 1994.

SPECIFIED FINANCIAL SERVICES- SECTION 66D (n)

Services by way of—

(i) extending deposits, loans or advances in so far as the consideration is represented by way of interestor discount;

(ii) inter se sale or purchase of foreign currency amongst banks or authorised dealers of foreign

exchange or amongst banks and such dealers;- Section 66D (n).

DEFINITION

-"Interest" has the meaning assigned to it in clause (28A) of section 2 of the Income-tax Act, 1961;-Section 65B (30).




4.14.1 What are the “services by way of extending deposits, loans or advances in so far as the

consideration is represented by way of interest or discount”?

Illustrations of such services are -




• Fixed deposits or saving deposits or any other such deposits in a bank for which return is

received by way of interest.

• Providing a loan or over draft facility for in consideration for payment of interest.

• Mortgages or loans with a collateral security to the extent that the consideration for advancing

such loans or advances are represented by way of interest.

• Corporate deposits to the extent that the consideration for advancing such loans or advances

are represented by way of interest or discount.

4.14.2 If any service charges or administrative charges or entry charges are recovered in addition to

interest on a loan, advance or a deposit would such charges be also a part of this negative list entry?

No. The services of loans, advances or deposits are exempt in so far as the consideration is represented

by way of interest or discount. Any charges or amounts collected over and above the interest ordiscount amounts would represent taxable consideration.

4.14.3 To what extent is invoice discounting covered in the negative list entry?

Invoice discounting is covered only to the extent consideration is represented by way of discount.

4.14.4 Would services provided by banks or authorized dealers of foreign exchange by way of sale

of foreign exchange to general public be covered in this entry?

No. This entry only covers sale and purchase of foreign exchange between banks or authorized dealersof foreign exchange or between banks and such dealers.

COMMENT FROM THE AUTHOR:

Finance bill 2012 has excluded following from the purview of service tax net:

Fixed deposits or saving deposits or any other such deposits in a bank for which return is

received by way of interest.

Providing a loan or over draft facility for in consideration for payment of interest.

Mortgages or loans with a collateral security to the extent that the consideration for advancing

such loans or advances are represented by way of interest.

Corporate deposits to the extent that the consideration for advancing such loans or advances

are represented by way of interest or discount.




TRANSPORTATION OF PASSENGERS - SECTION 66D (o)

Service of transportation of passengers, with or without accompanied belongings, by—

(i) a stage carriage;

(ii) railways in a class other than—

(A) first class; or

(B) an air-conditioned coach;

(iii) metro, monorail or tramway;

(iv) inland waterways;

(v) public transport, other than predominantly for tourism purpose, in a vessel of less than fifteentonne net; and

(vi) metered cabs, radio taxis or auto rickshaws; - Section 66D (o).

DEFINITIONS.

-"Inland waterway" means national waterways as defined in clause (h) of section 2 of the InlandWaterways Authority of India Act, 1985 or other waterway on any inland water, as defined in clause(b) of section 2 of the Inland Vessels Act, 1917;- Section 65B (29).

-"Metered cab" means any contract carriage on which an automatic device, of the type and make

approved under the relevant rules by the State Transport Authority, is fitted which indicates readingof the fare chargeable at any moment and that is charged accordingly under the conditions of itspermit issued under the Motor Vehicles Act, 1988 and the rules made there under - Section 65B (32).

-"Stage carriage" shall have the meaning assigned to it in clause (40) of section 2 of the Motor VehiclesAct, 1988; - Section 65B (46).

-"Vessel" has the meaning assigned to it in clause (z) of section 2 of the Major Port Trusts Act, 1963; -Section 65B (53).




4.15.1 Are services by way of giving on hire of motor vehicles to state transport undertakings

covered in this negative list entry?




No. However such services provided by way of hire of motor vehicle meant to carry more than 12

passengers to a State transport undertaking is exempt.

4.15.2 In some cases contract carriages get permission or temporary permits to ply as stage carriages.

Would such services be taxable?

Specific exemption is available to services of transport passengers by a contract carriage for

transportation of passengers, excluding tourism, conducted tours, charter or hire.

4.15.3 Are national waterways covered in the definition of inland waterways?

Yes.


Finance Minister vide Finance Bill 2012 (In the case of transport sector) has proposed to includefollowing in the negative list:

a stage carriage;

railways in a class other than (i) first class; or (ii) an AC coach;

metro, monorail or tramway;

inland waterways;

public transport, other than predominantly for tourism purpose, in a vessel of less than fifteen

tonne net; and

metered cabs, radio taxis or auto rickshaws.

TRANSPORTATION OF GOODS- SECTION 66D (p)

Services by way of transportation of goods—

(i) by road except the services of—

(A) a goods transportation agency; or

(B) a courier agency;

(ii) by an aircraft or a vessel from a place outside India to the first customs station of landing in India;or

(iii) by inland waterways;- Section 66D (p).




DEFINITIONS

-"Aircraft" has the meaning assigned to it in clause (1) of section 2 of the Aircraft Act,

1934;- Section 65B (7).

-"Courier agency" means any person engaged in the door-to-door transportation of

time-sensitive documents, goods or articles utilising the services of a person, either directly orindirectly, to carry or accompany such documents, goods or articles;- ;- Section 65B (20).

-"Customs station" shall have the meaning assigned to it in clause (13) of section 2 of

the Customs Act, 1962; ;- Section 65B (21).

-"Goods" means every kind of movable property other than actionable claim and money; and includessecurities, growing crops, grass, and things attached to or forming part of the land which are agreed tobe severed before sale or under the contract of sale; - Section 65B (25).

-"Goods transport agency" means any person who provides service in relation to transport of goodsby road and issues consignment note, by whatever name called;- - Section 65B (26).

-"India" means,––

a) the territory of the Union as referred to in clauses (2) and (3) of article 1 of the

Constitution;

b) its territorial waters, continental shelf, exclusive economic zone or any other maritime zone as

defined in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other

Maritime Zones Act, 1976;c) the seabed and the subsoil underlying the territorial waters;

d) the air space above its territory and territorial waters; and

e) the installations, structures and vessels located in the continental shelf of India and the

exclusive economic zone of India, for the purposes of prospecting or extraction or production

of mineral oil and natural gas and supply thereof; - Section 65B (27).

-"Inland waterway" means national waterways as defined in clause (h) of section 2 of the InlandWaterways Authority of India Act, 1985 or other waterway on any inland water, as defined in clause(b) of section 2 of the Inland Vessels Act, 1917;- Section 65B(29).

-"Vessel" has the meaning assigned to it in clause (z) of section 2 of the Major Port Trusts Act, 1963; -

Section 65B (53).


CLARIFICATION BY THE DEPARTMENT





4.16.1 Are all services provided by goods transport agency excluded from the negative list?

Yes. However, there are separate exemptions available to the services provided by the goods transport

agency. These are services by way of transportation of –

• fruits, vegetables, eggs, milk, food grains or pulses in a goods carriage;

• goods where gross amount charged on a consignment transported in a single goods carriage

does not exceed one thousand five hundred rupees; or

• goods where gross amount charged for transportation of all such goods for a single consignee

in the goods carriage does not exceed rupees seven hundred fifty.

4.16.2 Are goods transport agencies liable to pay tax in all cases or are provisions relating to reverse

charge also applicable after introduction of negative list?

The provisions relating to reverse charge, i.e. service tax is liable to be paid by the consigner or

consignee in specified cases, are applicable even after the introduction of negative list.

4.16.3 Are the following services of transportation of goods covered in the negative list entry?

4.16.4 Are services provided as agents for inland waterways covered by this entry?

No. these are in the nature of services used for providing the negative list entry service of transport of

goods on inland waterways and would not be covered by application of the rule for interpretation

where services are specified by way of description contained in clause (1) of section 66F of the Act.


Finance Bill 2012 has specifically excluded following services provided in relation to transportation ofgoods from the purview of the service tax net:-

by road except the services of

Nature of service relating to transportation

of goods

Whether covered in the negative list entry?

By railways No

By air within the country or abroad No

By a vessel in the coastal waters NoBy a vessel on a national waterway Yes




o a goods transportation agency; or

o a courier agency

by aircraft or vessel from a place outside India to the first customs station of landing in India;

or

by inland waterways.

OTHER SERVICES- SECTION 66D (q)

Funeral, burial, crematorium or mortuary services including transportation of the deceased.- Section66D (q).




4.17 Funeral, burial, crematorium or mortuary services including transportation of the deceased

This negative list entry is self-explanatory.

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Documents

Budget Highlights-2012_service Tax