PREFACE

“Knowledge will forever govern ignorance; and people who mean to be their own governors, must arm themselves with the power which knowledge gives.”

- James Madison

It is my pleasure to present the Fourth Edition of the Frequently Asked Questions’ booklet, being published at the behest of the Central Board of Excise and Customs.

The tenet of voluntary tax compliance is the corner stone of service tax administration.
It is our endeavor to place as much information about service tax procedures as possible in the
public domain to preclude a non-compliance owing to lack of information and guidance.
Dissemination of information and public awareness has been accorded high priority by the
service  tax  administration.  Information  in  the  booklet  is  purely  as  a  measure  of  public
facilitation.

The Directorate has made a conscious effort to keep the language of the answers simple
and crisp. The questions are truly frequently asked, as experienced by the Board, Directorate
and the field formations. However, the booklet is not aimed to discuss the legal issues and
exceptions.

 

The provisions of the relevant Finance Act, notifications and circulars or instructions of the Board shall prevail over the answers provided in this booklet in case of any contradiction. While every effort has been made to ensure that the information contained in this booklet is upto-date, the Central Board of Excise and Customs and Directorate General of Service Tax, Mumbai do not hold themselves liable for any consequences, legal or otherwise, arising out of the use of any such information.

 

I  sincerely  acknowledge  the  remarkable  efforts  made  by  Shri  Pranesh  Pathak, Additional Director, Shri Rakesh Ladwal, Assisstant Director Shri D.P. Kulkarni Supdt.of this Directorate  in  bringing  out  this  edition  of  the  booklet.  I  would  also  like  to  express  my appreciation  and  thanks  to  the  Shri  Pawan  Kumar  Sinha  Additional  Commissioner  CCO Customs Ahmedabad and Shri Shirish S. Gogate Inspector, LTU Mumbai who had put in hard work while working in DGST, for publishing the earlier version of this booklet. Last but not the least, I acknowledge the contribution of the Central Board of Excise & Customs for providing their valuable inputs and guidance.

If you have any doubts, please contact your nearest Help Centre or Central Excise
Commissionerate/   Service   Tax   Commissionerate -   visit   www.cbec.gov.in   and

www.exciseandserviceta.nic.in to find the addresses and telephone numbers for further
clarification.

I hope that this booklet will be useful in providing basic knowledge about service tax
laws and procedures. These FAQs and answers will also be available on the official website of
the Central Board of Excise and Customs: www.cbec.gov.in.

 

This Directorate will welcome your suggestions to make this booklet more useful.

 

 

 

G.V.NAIK

Mumbai                                                                                            Director General

30^th  December 2008.                                                         Directorate General of Service Tax

 

 

 

 

DISCLAIMER

Information is being made available in this booklet purely as a measure of public facilitation. The provisions of   the Finance Act 1994, rules made thereunder, notifications and circulars or instructions of the Board shall prevail over the answers provided in this booklet in case of any contradiction. While every effort has been made to ensure that the information contained in this booklet is up-to-date, the Central Board of Excise and Customs and Directorate General of Service Tax, Mumbai does not hold themselves liable for any consequences, legal or otherwise, arising out of the use of any such information.

 

For complete Information please refer to the Finance Act,1994, rules made thereunder and
notifications and circulars. For further information you may contact jurisdictional Service Tax
office.

 

 

 

 

 

 

 

 

 

 

CONTENTS

 

Sl. No.                                   Topic                                                          Page No.

 

 

1                       General   ……………………………………………….                4

2                       Registration……………………………………………                  7

3                       Payment of Service Tax………………………...                          9

4                       Filing of Returns…………………………………...                      15

5                       Records………………………………………………..                  16

6                       Refunds……………………………………………….                  18

7                       Manner of payment of service tax.                                              20

8                       Exemptions………………………………………...                      21

9                       Penal Provisions……………………………………….                 23

10                     Adjudication & Determination of Tax……………                      25

11                     Appellate Remedies………………………………...                     26

12                     CENVAT Credit Scheme…………………………….                   27

13                     Export of Services & taxable service used in

relation to export of goods………………………...                      30

14                     Service Tax on Receipt of Services from

Outside (Import of Services)……………………….                     32

15                     Advance Ruling………………………………………                  33

16                     Where can the Department can be contacted-----------                 34

17                     Appendix 1 - List of Taxable Services with Account Codes----   36

18                     Appendix 2 - abatements available under Service Tax Laws---   41

19                     Appendix 3 - List of provisions- Provisions of

Central Excise Act, 1944 , applicable to  Service Tax.----------    45

20.            Appendix 4 - Export of Services Rules, 2005 & Taxation -------   46

of Services (Provided from outside India and Received in India) Rules 2006 - List of Service Categories.

21.            Appendix 5 - List of taxable services eligible for full CENVAT--- 49

credit even though  separate  records are not maintained  for taxable and exempted services.

 

 

 

 

 

 

 

 

 

 

 

 

SERVICE TAX

FREQUENTLY ASKED QUESTIONS

1.        General

 

1.1.   What is Service Tax and who pays this tax?

Service tax is, as the name suggests, a tax on Services. It is a tax levied on the transaction of certain services specified by the Central Government under the Finance Act, 1994.

It is an indirect tax (akin to Excise Duty or Sales Tax) which means that normally, the service provider pays the tax and recovers the amount from the recipient of taxable service.

 

1.2. Who is liable to pay service tax?

Normally, the  ‘person’ who provides the taxable service on receipt of service charges is
responsible for paying the Service Tax to the Government (Sec.68 (1) of the Act). However, in
the following situations, the receiver of the Services is responsible for the payment of Service
tax   :

(i)  Where  taxable  services  are  provided  by  foreign  service  providers  with  no
       establishment in India  , the recipient of such services in India is liable to pay
       Service Tax,;

(ii)   For the services in relation to Insurance Auxiliary Service by   an Insurance Agent ,
       the Service Tax is to be paid by the Insurance Company

(iii) For the taxable services provided by a Goods Transport Agency for transport of
       goods by road, the person who pays or is liable to pay freight is liable to pay
       Service Tax , if the consignor or consignee falls under any of the seven categories
       viz. (a) a factory (b) a company (c) a corporation (d) a society (e) a co-operative
       society (f)  a  registered  dealer  of  excisable  goods (g)  a  body  corporate  or  a

partnership firm

(iv) For  the  taxable  services  provided  by  Mutual  Fund  Distributors  in  relation  to
       distribution of Mutual Fund the Service Tax is to be paid by the Mutual Fund or the
       Asset Management Company receiving such service.

 

[ Refer: Sec. 68(2) of the Act read with Rule 2(d) of the Service Tax Rules, 1994.]

 

 

1.3. Under what authority service tax is levied?

 

Vide Entry 97 of Schedule VII of the Constitution of India, the Central Government levies service tax through Chapter V of the Finance Act, 1994. The taxable services are defined in Section 65 of the Finance Act, 1994. Section 66 is the charging section of the said Act.

 

1.4. What are the taxable services?

 

Taxable Services have been specified under Section 65(105) of the Finance Act, 1994.      All the taxable services as on 31.12.2008 are listed in     Appendix-1. The list also shows the relevant Accounting Heads required to be mentioned on the tax payment documents (GAR-7), while depositing the Service Tax and other related dues in the banks.

 

1.5.       How to decide whether Service Tax is payable by a person?

 

 A.       If you are engaged in providing a service to your customer, please check:-

(i)  Whether the service rendered by you is falling under the scope of any of the taxable
       services listed in the Appendix-1.; and

(ii)  Whether there is a general or specific exemption available for the category of
       service provided under any notification issued under section 93 of the Finance Act,
       1994.

(iii)  Whether you are entitled to the value based exemption available for small service
       providers under notification No.6/2005-ST dated 1.3.05 as amended from time to
       time.  Details are explained in para 8.1 of this Booklet.

(iv) Whether the service charges were received for the services provided or to be
       provided.

In case the service provided by a person falls within the scope of the taxable services and if
such service is not fully exempted, the service tax is payable on the value of the taxable
service received, subject to the eligible abatements, if any (please also see Q. No. 1.7)

 

B.        If you are availing the services of the service provider, please check:-

a.  Whether the service received by you is falling under the scope of any of the services
      where the recipient of the service is liable to pay Service Tax in terms of Section 68(2)
      of the Act read with Rule 2(d) of the Service Tax Rules, 1994 (Please also See Q.   No.:

1.2).

b.  In case the service received by recipients of such service is falling under the scope of
      any of the taxable services defined under section  65 of the Finance Act,  1994, the
      recipients   of   the   service   shall   pay  Service   Tax   after   considering  specific
      exemptions/abatements admissible, if any.

c.  Please note that the value based exemption for small scale service providers under
      Notification  No.6/2005  ST  dated 01.03.2005  effective  from 01.04.2005  is  not

admissible to such recipients of taxable services. (For further details, please see the answer to Question No.7.1).

 

 

1.6. What is the rate of Service Tax?

 

At present, the effective rate of Service Tax is 12.36% on the value of the taxable service. The
above effective rate comprises of Service Tax @12% payable on the “gross value of taxable
service”,  Education  Cess @  2%  on  the  service  tax  amount,  and  Secondary  and  Higher

Education Cess @ 1% on the service tax amount.

 

1.7. What is meant by “value of taxable service"?

 

i.      The "value of taxable service" means, the gross amount received by the service

provider for the taxable service provided or to be provided by him. Taxable value has to be determined as per the provisions of the Section 67 of the Finance Act, 1994 read with Service Tax (Determination of Value) Rules, 2006.

 

ii.       For certain services, a specified percentage of abatement is allowed from the gross

amount collected for rendering the services  (see Appendix  -  2) subject to the conditions, inter alia, that CENVAT Credit has not been availed by the service provider and the benefit under the Notification No.12/2003-ST dt. 20.6.2003 has also not been availed.

 

iii.       There is also a composition scheme for  ‘works contract service’, where the

person liable to pay service tax in relation to works contract service shall have the option to discharge his service tax liability on the works contract service provided or to be provided, instead of paying service tax at the rate specified in section 66 of the Act, by paying an amount equivalent to 4% of the gross amount charged for the works contract. The gross amount charged for the works contract shall not include Value Added Tax (VAT) or sales tax, paid on transfer of property in goods involved in the execution of the said works contract.

1.8.     Can the Department modify the value determined by the service provider?

(i)       The Central Excise Officer is empowered to verify the accuracy of any information

furnished or document presented for valuation.

(ii)       If the value adopted by the Service Tax assessee is not acceptable in accordance

with the statute, the officer shall issue a show cause notice  (SCN) proposing to determine the value as per the law.

(iii)     The SCN would be decided after providing reasonable opportunity of being heard to

the assessee.

(Rule 4 of the Service Tax (Determination of Value) Rules, 2006 read with Section 67 of the Act)

 

 

1.9.        What are the statutes governing the taxation relating to Service Tax?

 

The Statutes governing the levy of Service Tax are as follows:

 

(i)  The Finance Act, 1994 - Chapter V - Section 64 to 96 I. (Also referred to as ‘Act’ in
       this book). This chapter extends to the whole of India except the State of Jammu
       and Kashmir.

(ii)  The Finance Act,  2004 Chapter VI  - for levy of Education Cess  @  2% on the
       Service Tax.

(iii) The Finance Act, 2007 - for levy of secondary and Higher Education Cess of 1% on
       service tax.

(iv) The Service Tax Rules, 1994. (Also referred to as ‘Rules’ or ‘STR,1994’ in this
       book).

(v)  The CENVAT Credit Rules, 2004.
(vi) The Export of Service Rules, 2005.

(vii) The Service Tax (Registration of Special categories of persons) Rules, 2005.

 

(viii)   The Taxation of Services (Provided from Outside India and Received in India)
       Rules,  2006  (with effect from  19th April,  2006)  - Notification No.  11/2006-ST
       dated 19.4.2006 as amended vide Notfn.No.31/2007 - ST dated 22.05.2007.

 

(ix) The Service Tax (Determination of Value) Rules, 2006 (with effect from 19th April,

2006)   -  Notification  No.     12/2006-ST  dated    19.4.2006  as  amended  vide

Notfn.No.24/2006  -  ST  dated     27.06.2006  and  Notfn.No.29/2007-ST,  dated

22.05.2007.

 

(x)  Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007-

Notification  No.  32/2007-Service  Tax  dated 22^nd  May,  2007,  as  amended  by

Notification No. 07/2008-St dated 1^st March, 2008.

 

 

1.10.    Is there any exemption from payment of service tax to Diplomatic Missions for
             official use and individuals and their family members posted in a Diplomatic
             Mission?

Yes, any taxable service provided to Diplomatic Missions for official use of such Mission as well as for the personal use or for the use of the family members of diplomatic agents or career consular officers posted in a foreign diplomatic mission or consular post in India is exempt in terms of    the notifications numbers  33/2007-ST dated  23^rd May,  2007 and 34/2007-ST dated 23^rd May, 2007 respectively.

 

2.       Registration :

2.1.     What  is  meant  by  “Registration”?  Who  should  apply  for  registration  under

Service Tax law?

In terms of Section 69 of the Finance Act,1994 (Chapter V) read with rule 4 of the Service Tax Rules,1994 -

·  Every person who has provided a taxable service of value exceeding Rs. 9 lakhs, in
     the preceding financial year, is required to register with the Central Excise or
     Service Tax office having jurisdiction over the premises or office of such service
     provider.

·  In case a recipient is liable to pay service tax (Please see question No. 1.2) he also
     has to obtain    registration.

·  The ‘Input Service Distributors’ are also required to register them as per Notfn. No.
     26/2005-ST dated 07.06.2005 as amended.

 

 

2.2.      Why registration is necessary?

Registration is identification of an assessee. Identification is necessary to deposit service tax,
file returns and undertake various processes ordained by law relating to service tax. Failure to
obtain registration would attract penalty in terms of section 77 of the Finance Act, 1994, read
with rule 4 of Service Tax Rules 1994. (Please also refer to the answer to Question No.2.15)

2.3.     What is the meaning of an ‘assessee’ in relation to Service Tax?

As per the sub-section (7) of Section 65 of the Finance Act, 1994 (Chapter V), ‘assessee’ means

a person liable to pay Service Tax and includes his agent.

 

2.4.     When should a prospective assessee obtain registration?

i.       When a person commences business of providing a taxable service, he is required to

register himself within 30 days of such commencement of business[sub-rule (1) of Rule 4 of Service Tax Rules, 1994].

ii.       In case service tax is extended to a new service, an existing service provider must

register himself, unless he is eligible for exemption under any notification, within a period of 30 days from the date of new levy [sub-rule 5A of Rule 4 of the Service Tax Rules, 1994].

 

2.5.      What does the word “person” appearing in the definition of taxable service mean?

The word "Person" shall include any company or association or body of individuals, whether incorporated or not. Thus, this expression includes any individual, HUF, proprietary firm or partnership firm, company, trust, institution, society etc.

 

2.6.      What is the procedure for Registration? Who should be approached for Service

Tax Registration?

A prospective Service Tax assessee  (service provider or service receiver) or  ‘Input Service
Distributor’  seeking  registration  should  file  an  application  in  Form  ST-1 (in  duplicate)

[prescribed vide Notfn.No. 32/2005 dated 20.10.2005 as amended Notfn. No. 11/2008 dated

1.3.2008] before the jurisdictional Central Excise/Service Tax officer. To verify the correctness
of declaration in the said form certain documents   such as copy of PAN card, proof of address
of  business  premise(s),  constitution  of  the  business [proprietorship,  firm,  company,  trust,

institute etc.] etc. may be required by the registering authority. The copies may be self-certified by the applicant. In case of doubts in select cases, original documents may have to be presented for verification.

 

2.7.      How much time is taken for the issuance of the Registration Certificate?

The Registration certificate should be issued within a period of seven days from the date of submission of application ST-1 along with all relevant details/documents.

In case the registration certificate is not issued within seven days, the registration applied for is deemed to have been granted. [Rule 4(5) of the STR, 1994].

 

 

2.8.      Is there any provision for centralized registration?

 

Service providers having centralized accounting or centralized billing system who are located in one  or  more  premises, at their  option,  may register  such  premises or  office from  where centralized billing or centralized accounting systems are located and thus have centralized registration.

Commissioner of Central  Excise/Service Tax in whose jurisdiction centralized account or billing office of the assessees exists, is empowered to grant centralized registration in terms of Service Tax 4(2) and (3) of Service Tax Rules,1994.

 

2.9.       In case of  multiple  services provided by an assessee, is separate registration

certificate required for each service?

As per sub-rule (4) of rule 4 of the Finance Act, 1994, only one Registration certificate is to be taken even if the person provides more than one service from the same premises for which registration is sought. However, while making application for registration all taxable services provided by the person should be mentioned.

If there is centralized registration, only one registration certificate is required for services provided from different premises, declared in the application for centralized registration.

2.10.     What is to be done when the existing assessee starts providing a taxable service
not mentioned in the registration certificate? What is the process if the taxpayer stops
providing services from a registered premises of stops providing a taxable service.

He should intimate the jurisdictional Central Excise officer in writing, furnishing the name of
taxable service he starts providing.   No fresh documents are required for verification by the
officer unless there is change in any other details given in the original or earlier application(s).

In case the changes relates to deletion of any premises or taxable service, the assessee may file intimation on plain paper along with the copy of the registration certificate.

 

2.11.   Is PAN allotted by the Income Tax Department a must for obtaining Service Tax Registration?

Having PAN is essential because the Service Tax Code/Registration number is generated based on the PAN issued by the  Income Tax Department.  The  PAN based Service Tax Code/ Registration number is a must for payment of service tax using the G.A.R. 7 Form.

 

 

2.12.   What should be done with the Service Tax Registration on cessation of business of providing taxable service -?

 

The Service Tax Registration certificate (ST-2) should be surrendered to the concerned Central Excise / Service Tax authorities [Rule 4(7) of the STR, 1994].

 

2.13.    What should be done with the Registration in case of transfer business to another

person?

In the event of transfer of the business, the transferee should obtain a fresh certificate of Service Tax registration based on his own PAN [Rule 4(6) of the STR, 1994]. The transferor should surrender his registration certificate, as mentioned in the answer to Question No. 2.12.

2.14.   Whether a service provider can make payment of Service Tax and file returns before the grant of registration by the proper officer?

A person liable to pay service tax must apply for registration before he starts paying service tax and filing of return Service provider should apply well in advance to obtain registration, which is normally granted within 7 days of filing of application. If registration is not granted within seven days, it deems to have been granted.

 

2.15.   Is there any penal provision for non-registration?

Failure of registration may attract a penalty [Section 77(1)(a) of the Finance Act, 1994] upto
Rs.5000/- or Rs. 200/- for every day during which such failure continues, whichever is higher.

However, such penalty may be waived in case the assessee proves that there was reasonable cause for such failure [Section 80 of the Act].

 

2.16.   What should be done in case of change in the office/place of business?

Any change in premises/office, as provided in Form ST-1, should be intimated to jurisdictional Central Excise Officer.

 

2.17.     If a registration certificate issued by the Department is lost, can duplicate be

issued? What is the procedure in this regard?

The assessee is required to make written request for ‘duplicate’ registration certificate. The
same will be issued by the Department after suitable entry in the registers/records of the Office.

 

3.3.    Under  what  circumstances,  provisional  assessment  is  resorted  to?  What  is  the

procedure to be followed for payment of Service Tax if full details are not available to assess correct tax?

If an assessee is unable to correctly estimate the actual amount payable as Service Tax for
any  particular  month  or  quarter,  he  may  make  a  request  in  writing  to  the
Asstt./Dy.Commissioner  of  Service  Tax/Central  Excise,  giving  reasons  for  seeking
payment of Service Tax on provisional basis.   On receipt of such request for provisional
assessment, the authority may allow payment of Service Tax on provisional basis on such
value of taxable service as may be specified by him. Upon finalization of such assessment,
if a liability of service tax arises, the differential amount be paid by the assessee. If he has
paid excess amount he would be entitled to refund.   The provisions of the Central Excise
Rules relating to provisional assessment (except execution of bond), shall apply to such
assessment.

The assessee requesting for provisional assessment shall file a statement giving details of
the difference between the Service Tax deposited and the Service Tax liable to be paid for
each month in a memorandum in Form ST-3A accompanying the half yearly return in Form
ST-3.

 

3.4.     How is the provisional assessment finalized ?

In case the Service Tax assessee resorts to provisional assessment after following the procedure and furnishes the returns in Form ST-3A along with Form ST-3, it is the responsibility of the Asstt./Deputy Commissioner to complete the assessment after calling for from the assessee the relevant  documents  or  records,  as  may  be  considered  necessary  by  him.  Wherever  the Asstt./Dy. Commissioner, after considering all the details/documents proposes to re-assess the Service  Tax  liability,  the  finalization  of  the  provisional  assessment  would  be  made  after providing adequate opportunity to the assessee by issuing the show cause notice and giving opportunity of being heard in person.

 

 

3.5.       What is the head of account into which the Service Tax amount is to be paid in

respect of various services?

Separate “Head  of  account”  has  been  specified  for  each  taxable  service.  This  must  be
mentioned  on G.A.R.  7  (previously known  as TR-6)  challan for proper  accounting.  (See
Appendix-1).

 

3.6.          What is TR-6 or GAR-7 challan? Where is it available?

GAR-7 or TR-6 challan is the document for payment of service tax. GAR-7 or TR-6 challan is
available in any stationary shop selling Government forms. The format is also given on web-site
www.cbec.gov.in

 

 

3.7.      Can the Service Tax be deposited in Non-designated banks?

No.  For  payment  of  Service  Tax,  specific  bank  has  been  nominated  for  every  Central Excise/Service Tax Commissionerate. If Service Tax is deposited in a Branch /Bank other than the nominated Bank / Branch, it amounts to non-payment of Service Tax [Rule 6(2) of the STR, 1994]. In any case, a non-designated bank will not accept service tax challans.

 

 

3.8.     Whether the payment of Service Tax is to be made for the billed amount or for the

amount received?

The Service Tax for a particular period is payable on the amount / value of taxable service received during that period and not on the gross amount billed to the client.

If the charges for the taxable service have been received in advance prior to rendering of the services, the Service Tax is payable even if the services are yet to be provided by them [Section 67 of the Act and Rule 6(1) of the STR, 1994].

 

[Please also refer to the Service Tax (Determination of Value) Rules, 2006.]

 

3.9.     Can service tax be paid in advance, where the gross amount has not yet been

received?

Yes.   With effect from 1-3-2008, a new provision 6(1A) has been incorporated in Service Tax Rules, 1994, whereby service tax can be paid in advance to the credit of the central government and  adjust  the amount so paid  against the  service tax which he is liable to pay for the subsequent period. The assessee is required to intimate the details of the amount of service tax paid in advance to the jurisdictional superintendent of central excise/Service tax within a period of 15 days of such payment.  The amount shall be paid  under the respective head of accounts of the taxable service he is providing.

3.10.    Can service tax be paid by cheque?

Yes, service tax can be paid by cheque. [Rule 6(2A) of Service Tax Rules,1994]

 

 

3.11.    When paid by cheque, which date will be treated as date of payment?

The date  of  deposit of cheque is the date  of payment  of  Service Tax.  If the cheque is dishonoured, it would mean as if the Service Tax has not been paid and the relevant penal consequences would follow. [Rule 6(2) of the STR, 1994]

 

3.12 When payment is made by a client to an assessee after deducting his Income Tax
liability under the Tax deduction at source  (TDS) provision, whether the Service Tax
liability of the assessee is only towards the amount actually received from that client or
tax is to be paid on the amount including the Income Tax deducted at source also?

Service Tax is to be paid on the gross value of taxable service which is charged by a Service Tax assessee for providing a taxable service. Income tax deducted at source is includible in the charged amount. Therefore, service Tax is payable on the gross amount including the amount of Income Tax deducted at source also.

 

 

3.13 What is the interest rate applicable on delayed payment of Service Tax?

Every person, liable to pay the service tax in accordance with the provisions of section 68 of the Act or rules made thereunder, who fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, shall pay simple interest @13% per annum. Interest is payable for the period from the first day after the due date till the date of payment of any defaulted service Tax amount. [Refer to Section 75 of the Finance Act, 1994]

 

 

3.14.    Can interest be waived, and by whom?

Interest payments are mandatory in nature and the same can not be waived.

 

 

3.15.    What are the penal consequences if the Service Tax is not paid or paid late?

If a person who is liable to pay Service Tax fails to pay service tax, he shall pay in addition to
such tax and interest in accordance with the provisions of Section 75 of the Act, a penalty

More banks will be added over a period of time. You may find out the latest position on the
web site of Principal Controller of Accounts     http//:pccacbec.nic.in or check with the local
Central Excise/Service Tax office.

 

3.18.     Who can opt for e-Payment?

Any customer of the Bank, who is an assessee of Central Excise or Service Tax, can pay Indirect Taxes online using Internet banking service of Bank. (Refer Question No. 3.16)

 

3.19.     How to get Internet banking facility of Bank?

The customers of Bank can request this facility on prescribed application forms to any bank having internet banking facility.

 

3.20.      Are there any geographical restrictions on Banks?

No.   Customer can effect payment from anywhere for the Commissionerate in which he is registered with, provided that particular bank is designated and authorized to collect revenue for that Commissionerate.

 

3.21.      Up to what time in a day the e-Payments can be made?

e-Payment can be made 24 hours a day using Internet banking service of Bank. Payment made up to 8 pm will be accounted on the same day.  However payments effected after 8 pm will only be included in next working day's scroll by the Focal point Branch. So, to ensure timely payment, e-payment should be made latest by 8 p.m. on the due date.

3.22.        Does  the  Internet  banking  service  give  any  receipt/confirmation  for  the  e-

Payment?

Yes, on successful payment the Internet banking user gets a Cyber Receipt for the Tax payment, which he can save or print for his record.

 

3.23.    How does the taxpayer get the regular Challan stamped and receipted by Bank?

The respective Focal Point Bank on the next working day will send the Challan copies duly receipted and stamped to the taxpayer by courier at the mailing address provided by the taxpayer.

 

4.  Filing of Returns

 

4.1.      What are the Returns a service tax assessee has to file?

ST-3 Return -   For all the registered assessee, including Input Service Distributors,
                          (Ref. Section 70 of Finance Act,1994 and Rule 7 of Service Tax Rules,
                          1994 read with Notfn.No. 14/2007-ST dated 02.04.2007).

ST-3A Return -The assessee who is making provisional assessment under rule 6(4) of
                          the Service Tax Rules, 1994.

 

The Forms are available at any Stationery shop selling Govt. forms. These can also
be downloaded from www.cbec.gov.in

 

4.2.     When to file returns?

ST-3 Return is required to be filed twice in a financial year - half yearly.

 

Return for half year ending 30th September and 31st March are required to be filed by 25th October and 25th April, respectively.

 

4.3.      How to file Service Tax Returns?

The details in respect of each month/ Quarter, as the case may be, of the period for which the return is filed, should be furnished in the Form ST-3, separately. The instructions for filing return are mentioned in the Form itself.

It should be accompanied by copies of all the GAR-7 Challans for payment of Service Tax during the relevant period.

 

4.4.     Is there any provision to file a revised return?

Yes, under rule 7B of Service Tax Rules, 1994 an assessee may submit a revised return, in Form ST-3, in triplicate, to correct a mistake or omission, within a period of ninety days from the date of submission of the return under rule 7. However, where an assessee submits a revised return, the ‘relevant date’ for the purpose of recovery of service tax, if any, under section 73 of the Act shall be the date of submission of such revised return.

 

 4.5.      Where to file return?

ST-3 or ST-3A is filed in triplicate to the Superintendent of Central Excise/Service Tax with whom the assessee has registered himself. [Section 70 of the Act].

 

 4.6.      What is e-filing of  Service Tax Returns?

The e-filing is a facility for electronic filing of Service Tax Returns through the Internet.

 

 4.7.     Who can file their Returns through Electronic medium?

Any  Service  Tax  assessee  having  a    15-digit  Service  Tax  payer  code  can  file  return

electronically.

 

4.8.      What is the procedure for e-filing?

(i)  File an application to the jurisdictional Asst./Deputy Commissioner of Service
      Tax, specifying -

-  15-digit PAN based registration number (STP Code)

5.       Records

5.1.    Are there any statutory documents prescribed by the Government such as specified invoice proforma, specified registers etc. for use by the service providers?

There are no specific statutory records which have to be maintained by a Service Tax assessee.
The records including computerized data, if any, which are being maintained by an assessee on

his own or as required under any other law in force, such as Income Tax, Sales Tax etc. are acceptable for the purpose of Service Tax - (Rule 5(1) of the STR, 1994).

However, under the revised rule 5(2) of the STR, 1994 (with effect from 28th December, 2007), the assessee is required to provide to the jurisdictional Superintendent of Central Excise/Service Tax a list, in duplicate, of all the records prepared or maintained by the assessee for accounting of transactions in regard to (a) providing of any service, whether taxable or exempted;  (b) receipt or procurement of input services and payment for such input services;  (c) receipt, purchase, manufacture, storage, sale, or delivery, as the case may be, in regard of inputs and capital goods; (d) other activities, such as manufacture and sale of goods, if any and all other financial records maintained by him in the normal course of business,

 

5.2.      Where from the Service Tax assessee can get the Forms such as ST-1, ST-3 etc?

The  Forms  are  available  on  the  CBEC  website  and  also  at  the  Central  Excise Range/Division/Commissionerate Hqrs. offices. The forms are also available in the market sold by private publishers.

 

5.3.     Can the Department ask for more information than what assessee is submitting to

it in the Form ST-1 and ST-3?

Yes. If it is felt necessary, the Department can call for additional information/ documents for scrutiny, as per Rule 6(6) of the STR, 1994 and Sec. 14 of the Central Excise Act, 1944 which is made applicable to Service Tax matters, as per Sec. 83 of the Finance Act, 1994.

Rule 5A of STR, 1994 provides that every assessee, on demand, is required to make available to the central excise/service tax officer authorized by the Commissioner or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India, within a reasonable time not exceeding fifteen working days from the day when such demand is made, or within such further  period  as  may  be  allowed  by  such  officer  or  the  audit  party,  the  following records/documents for the scrutiny of the officer or audit party:

 

i.      the records as mentioned in Rule 5(2) of STR, 1994;

ii.      trial balance or its equivalent; and

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

1961 ( 43 of 1961).

 

However, such officer/audit party may allow further period for submission of the aforesaid records/documents

In the event of failure to make available the records/documents, a penalty of Rs. 5000 or Rs. 200 for every day during which such failure continues starting with the first day after the due date, till the date of actual compliance, whichever is higher, is imposable on the assessee under amended section 77 (with effect from 12^th May, 2008).

 

5.4.      Can a Service Tax officer access an assessee’s registered premises?

As provided under Rule 5A of STR, 1994, an officer authorized by the Commissioner can have access to an assessee’s registered premises for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of revenue.

5.5.      Whether issue of Invoice/Bill/Challan is mandatory? When should the same be issued?

Issue of Invoice/Bill/Challan by a Service Tax assessee is mandatory as per Rule 4A of the
STR, 1994. The same should be issued within 14 days from the date of completion of taxable

service or receipt of payment towards the service, whichever is earlier. However, if the service is provided continuously for successive periods of time and the value of such taxable service is determined or payable periodically, the Invoice/Bill/Challan shall be issued within 14 days from the last day of the said period (Proviso to Rule 4A (1) of the STR 1994).

 

5.6.      Is there any prescribed format for the Invoice/Bill?

There is no prescribed format for issue of Invoice. However, the invoice/bill/challan should contain the following information (Rule 4A of the STR, 1994):

i.      Serial number.

ii.      Name, address and registration no. of the service provider.

iii.      Name and address of the service receiver.

iv.      Description, classification and value of taxable service being provided or to be provided.

v.      The amount of Service Tax payable (Service Tax and Education cess should be shown

separately)

 

Note: If the service provider is a Banking company, the details at Sl. No (i) and (iii) are not necessary.

In respect of the taxable services relating to the transport of goods by road, provided by the Goods Transport Agency, the service provider should issue a consignment note containing the following information (Rule 4B of the STR, 1994): -

i.      Serial Number

ii.      Name of the consignor and consignee

iii.      Registration no. of the vehicle

iv.      Details of the goods transported

v.      Details of the place of origin & destination

vi.      Person liable for payment of Service Tax (consignor /consignee / GTA)

5.7.      Is the amount of Service Tax charged from the client compulsorily to be indicated separately in the Bills / Invoices / Challans raised on him?

Yes.  It  is  mandatory  to  separately  indicate  the  amount  of  Service  Tax  charged  in  the
Bills/Invoices/Challans raised on the clients, as per Section 12A of the Central Excise Act, 1944
which is made applicable to Service Tax, under Sec.83 of the Finance Act, 1994. Such mention
of the Service Tax amount in the Invoice / Bill / Challans, would also facilitate the service
receiver to avail the CENVAT credit of the Service Tax paid on the input services.

 

5.8. What is the preservation period for service tax records and documents?

 

All records and documents concerning any taxable service, CENVAT transactions etc. must be preserved for a minimum period of 5 years immediately after the financial year to which such records pertain (Rule 5(3) of Service Tax Rules 1994.)

 

6.        Refunds

6.1      Can any adjustment of tax liability be made by an assessee on his own, in cases

when Service Tax has been paid in excess?

i.     Yes. Where an assessee has paid to the credit of the Government in respect of a
       taxable service, which is not so provided by him, either wholly or partially for any
       reason, the assessee may adjust the excess Service Tax so paid by him (calculated
       on a pro-rata basis) against his Service Tax liability for the subsequent period, if

the assessee has refunded the value of taxable service and the Service Tax thereon to the person from whom it was received (Rule 6(3) of the STR, 1994).

 

ii.     Further,  assesses  having  centralised  registration  who  paid  excess  amount  of

Service Tax, on account of non-receipt of details regarding the receipt of gross
amount for the services at his other premises or offices, may adjust such excess
amount against the Service Tax liability for the subsequent period and furnish the
details of such adjustment to the Jurisdictional Superintendent of Central Excise/
Service Tax within 15 days from the date of such adjustment (Rule 6(4A) of the
STR, 1994).

 

iii.     In all other cases of excess payment, refund claims have to be filed with the

Department. The refund claims would be dealt as per the provisions of Section 11B of the Central Excise Act, 1944, which is made applicable to Service Tax vide Section 83 of the Finance Act 1994.

iv.   It is important to note that any amount of Service Tax paid in excess of the actual
        liability, is refundable, only if it is proved that the claimant of refund had already
        refunded such amount to the person from whom it was received or had not
        collected at all (Section 11 B of the Central Excise Act, 1944 which is applicable
        to Service Tax matters under Section 83 of the Act).

 

 6.2      What is the procedure for claiming refund?

 

i.      Application in the prescribed form (Form - R) is to be filed in triplicate with the

jurisdictional Asst./Deputy Commissioner of Central Excise/Service Tax.

 

ii.    The application should be filed within one year from the relevant date as prescribed in
        Section  11B of the Central Excise Act,  1944 which has been made applicable to
        Service Tax refund matters also.

 

iii.    Application should be accompanied by documentary evidence to the effect that the

amount claimed as refund is the amount actually paid by him in excess of the Service Tax due and the incidence of such tax claimed as refund has not been passed on to any other person.

  

6.3.            What is relevant date for calculation of limitation period in respect of filing

refund claims relating to Service Tax?

The “relevant date” for the purpose of refund as per section 11B of the Central Excise Act,
1944 which is applicable to Service Tax also, is the date of payment of Service Tax. Thus, the
limitation period of one year is to be calculated from the date of payment of the Service Tax.

 

 

6.4      Is there any provision for interest for delayed payment of refunds?

If any duty/tax ordered to be refunded under section 11B(2) of Central Excise Act, 1944, to any applicant is not refunded within three months from the date of receipt of application, interest at the applicable rate       shall be paid, subject to conditions laid down under section 11BB of the Central Excise Act, 1944.

Also where an amount deposited by an appellant in pursuance of an order passed by the
Commissioner (Appeals) or the Appellate Tribunal, under the first proviso to section 35F of the
Central Excise Act, 1944, is required to be refunded consequent upon the order of the appellate
authority and such amount is not refunded within three months from the date of communication
of such order to the adjudicating authority unless the operation of the order of appellate
authority is stayed by a superior court or tribunal, interest shall be paid at the applicable rate
after the expiry of three months, under the provisions made in section 35FF of the Central
Excise Act, 1944.

Provisions of Sections 11B, 11BB, 35F and 35FF of the Central Excise Act, 1944 are made applicable to Service Tax vide section 83 of the Finance Act, 1994.

 7.    Manner of payment of Service Tax, when clients do not pay service tax amount, what
      should be done?

 

 7.1.      Is the Service Tax payable by the assessee even in cases where his clients [recipient
           of service] do not pay for the service(s) rendered or when the client pays only a
           part of the bill raised in this regard?

 

Service Tax is required to be paid at the rate in force  (at present  12.36%) only on the value/amount of taxable service received in a particular month or quarter as the case may be, and not on the gross amount billed to the client. [Refer to sub-section (2) of Section 67 of Finance Act,1994/Rule 6(1) of Service Tax Rule 1994].

  

7.2.    How  does  one  work  out  the  Service  Tax  liability  and  pay  the  same  to  the Government, in case the customer or a client pays only the value of the service amount, but not the Service Tax amount mentioned in the bill?

 

Service Tax is payable on amount realized. In given situation, the amount so realized from the client would be treated as gross amount inclusive of Service Tax and accordingly the value of taxable service and the Service Tax liability are worked out as follows: For example :

 

Value of taxable service (AV) = Rs. 1000

Amount Billed = Rs. 1000 + Service Tax Rs. 123.60 = Rs. 1123.60

Amount paid = Rs. 1000.  Treat Rs. 1000 as gross amount inclusive of service tax.

 

In case the gross amount, including service tax, received is, say, Rs 1000. In such cases
the service tax liability may be arrived at by reverse calculation in the following manner.

 

1000

AV = ---------------- X 100 = Rs. 889.996 (Rs. 890)
           112.36

 

Amount of Service Tax + Education Cess Payable = Rs. 110

 

Note: If the recipient of service pays full billed amount later, the differential service tax must be paid forthwith.

 

8.        Exemptions

8.1.         What are the conditions of exemption to small scale service providers ?

Taxable services provided by the small scale service provider were   exempted from whole of
service tax leviable there-on   upto the aggregate taxable value   Rs.4 lakhs in any financial year of
vide Notification   No.06/2005-ST dated 01.03.2005 (effective from 01.04.2005). The exemption
limit of aggregate taxable was been enhanced to Rs.8 lakhs vide Notification No.4/2007-ST dated

01.03.2007 (effective  from 01.04.2007)  and  has  been  further  enhanced  to  Rs.10  lakhs  vide

Notification No.8/ 2008-ST dated 01.03.2008 (effective from 01.04.2008).

(i)        Above exemption is not admissible to :-

(a)       taxable service  provided by a person under a  brand name  or trade name,  whether

registered or not, of another person or

(b)       such value of taxable services in respect of which service tax shall be paid by recipient of

service under section 68 (2) of Finance Act read with Service Tax Rules, 1994.

(ii)       Above exemption is admissible subject to following conditions :-

(a)       taxable service provider has the option not to avail the said exemption and pay service

tax on the taxable service and such option are exercised in a financial year shall not be withdrawn during the remaining part of such financial year ;

(b)       the provider of taxable service shall not avail Cenvat credit of service tax paid on any

input used for providing taxable service on which exemption of small scale is availed.

(c)       The provider of taxable service shall not avail Cenvat credit under Rule 3 of the Cenvat

Credit Rules 2004, during the period in which the service provider avail small scale exemption.

(d)       The provider taxable service shall avail CENVAT Credit only on such inputs or input

services received on or after the date on which the service provider starts paying service
           tax and used for provision of taxable services on which service tax is payable.
 (e) The provider of taxable service shall be required to pay an amount equivalent to the
           CENVAT credit taken by him, if any, in respect of such inputs lying in stock or in
           process on the date on which he starts availing exemption under this notification.
 (f) The balance CENVAT Credit lying unutilized if any after the adjustment of credit under
           (e) above, shall lapse on the day such service provider starts availing the exemption
           under this notification.

(g)       This notification shall apply to the aggregate value of one or more taxable services

provided from one or more premises and not separately for each premises or each

service.

(h)       The aggregate value of taxable services rendered by a provider of such service from one

or more premises does not exceed exemption limit fixed (i.e. four lakhs, Eight lakhs or Ten lakhs as the case may be) in the proceeding financial year.

8.2           Whether Gross Value of taxable services on which recipient has paid service tax as
specified under Section 67(2) of the Finance Act, 1994 read with Service Tax Rules 1994, charged
by goods Transport Agency shall be counted for determining aggregate value of small scale exemption ?

No.    The Gross amount charged by Goods Transport Agency under Section  67 ibid to the recipient of service shall not to be taken into account for determining the aggregate taxable value under the small scale exemption.

 

8.3      What is the meaning of “brand name” or “Trade name” in Para 8(i) (a) above?

A   “brand name” or   “trade name” means brand name or trade name, whether registered or not

i.e. to say, a name or a mark, such as symbol, monogram, logo, label, signature, or a invented word or
writing which is used in relation to such specified services for the purpose of indicating or so as to

indicate a connection in the course of trade between such specified services and some person using such name or mark with or without any identification of the identity of that person.

 

 8.4              How to determine the aggregate value of Rs  10 lakh under small scale exemption

notification?

The aggregate taxable value means the sum of total of first consecutive payments received during financial year towards gross amount, as   prescribed under Section 67 of F.A. 1994 towards the taxable services

  

8.5       Are there any other General exemptions?

The following general exemptions from payment of whole of the amount of Service Tax are available for the Service Providers:

8.5.1   Services provided to the United Nations or International Organisations (Notification
           No.16/2002-ST dated 02.08.2002).

8.5.2   Services provided to a developer of Special Economic Zone or a unit of Special
           Economic  Zone    as  prescribed    in  the  notification.(Notifn.  No.04/2004-ST  dated

31.03.2004).

 

8.5.3   The value of the goods and materials sold by the service provider to the recipient of
           the service is exempted from payment of the Service Tax, if there is a documentary
           proof specifically indicating the value of the goods and materials and no credit of duty
           paid on such  goods  and material sold, has been taken under the provisions of CENVAT
           Credit rules, OR where such credit has been taken by the service provider on such goods
           and materials, but such service provider has paid the amount equal to such credit availed
           before the sale of such good and materials. (Notifn.12/2003-ST dated 20.06.2003 as
           amended from time to time).

 

8.5.4   Exemptions to Diplomatic Missions for official use of taxable services and also to the

officers and their families of a Diplomatic Mission for personal use of taxable services-

Refer  Notification  Nos.   33/2007-ST  and   34/2007-ST,  both  dated   23.5.2007-See

Question No. 1.13, 1.14 and 1.15, ante.

8.5.5. Specified taxable services, as listed below, received by an exporter and used for export of
         goods (Notification No. 41/2007-ST dated 06.10.2007 as amended). Under this notification,
         the  service  tax  paid  by  an  exporter  on  these  services  is  refunded  to  the  exporter  on
         compliance of conditions mentioned in that notification.

 

1.  General Insurance

2.  Port Service

3.  Technical Testing & analysis

4.  Technical Inspection & Certification

5.  Other Ports

6.  Transport of Goods by Road (Goods Transport Agency)[from the inland
      container depot to the port of export]

7.  Transport of goods in containers by Rail [from the inland container depot to the
      port of export]

8.  Cleaning Service

9.  Storage & Warehousing

10. Courier

11. Transport of Goods by Road (Goods Transport Agency)[directly from the place
      of removal, to inland container depot or port or airport,]

12. Transport of goods in containers by Rail [from the place of removal to inland
      container depot or port or airport]

13. Custom House Agent

14. Banking & other Financial Services

15. Business Auxiliary Services

16. Service  of sale or purchase of foreign currency including money changing by a
      banking company or financial institution including non-banking financial
      company or a bopdy corporate or a financial concern

17. Service of sale and purchase of foreign currency including money changing
      provided by a person other then those referred at  S.No 16

18. Service of supply of tangible goods for use without transferring the right of
      possession and effective control

19. Clearing and forwarding service

 

 

8.6      Is there any exemption from payment of Service Tax if the receiver/provider of the
service is the Central/State Government organization and Public Sector Undertakings?

8.6.1.  No. There is no such exemption. All service providers, including the Central/State
           Government Organisations and the Public sector undertakings rendering the specified
           taxable service, are liable to pay Service Tax.

8.6.2. If a Government Department (sovereign)/public authorities performs any mandatory or
          statutory function under the provisions of any law and collect any fees, such activity
          shall be treated as activity purely in public interest and will not be taxable.

8.6.3   If such authority performs a service, which is not in the nature of statutory activity, for a
           consideration, the same shall be taxable.

 

8.6.4    However, the taxable services provided by a Banking company or a financial institution

including a non banking financial company, or any other body corporate or any other
person,  to  the  Government  of  India  or  the  Government  of  a  State,  in  relation  to
collection of any duties or taxes levied by the Government of India or the Government
of a State, are exempted from the payment of Service Tax. (Notifn.No.13/2004-ST dated

10.09.2004 as amended).

 

 9      Penal Provisions

 

9.1       What are the penal provisions for various contraventions of the Service Tax Law?

 

The Penal provisions for various contraventions of the Service Tax Law are as follows:-

 

i.      Non registration or delayed registration: An amount which may extend to Rs. 5000/-

or Rs.200/- for every day during which such failure continues, whichever is higher could be imposed as penalty under sec 77(1)(a) of the Act.

 

ii.       Non payment or delayed payment of service tax- A mandatory penalty, not less than

Rs.200/- for every day during which such failure continues or @2% of such tax per month, whichever is higher, shall be imposed by the adjudicating authority. However, the penalty amount payable shall not exceed the amount of service tax payable. [section 76 of the Act]

 

iii.      Non-filing / delayed filing of returns: A mandatory penalty has been prescribed under

Rule  7C of the Service Tax Rules,  1994, as well as an amount not exceeding Five Thousand Rupees could   be imposed as penalty under sec 77 of the Act. (see question No.4.11)

 

 iv.      Contravention of any of the provisions of the Finance Act, 1994 (Chapter V) or the

Rules made thereunder for which no penalty is separately provided: An amount which may extend to  Rs.5000/- shall be liable to be imposed as penalty under Sec.77(2) of the Act.

  

v.      Failure  to  keep,  maintain  or  retain  books  of  account  and  other  documents  as

required in accordance with the provisions of the Finance Act, 1994 (Chapter V) or the rules made thereunder: An amount which may extend to five thousand rupees shall be liable to be imposed as penalty. [Section 77(1)(b) of the Act]

  

vi.      Failure  to—

 (1) furnish information called by an officer in accordance with the provisions of
      the Finance Act,1994 (Chapter V)  or rules made thereunder; or

(2) produce documents called for by a Central Excise Officer in accordance with
     the provisions of this Chapter or rules made thereunder; or

(3) appear before the Central Excise Officer, when issued with a summon for
     appearance to give evidence or to produce a document in an inquiry,

 

An amount which may extend to five thousand rupees or two hundred rupees for every day during which such failure continues, whichever is higher, shall be liable to be imposed as penalty. [Section 77(1)© of the Act]

 

vii.       Person who is required to pay tax electronically, through internet banking, but

fails to pay the tax electronically: An amount which may extend to five thousand rupees shall be liable to be imposed as penalty. [section 77(1)(d) of the Act]

 

viii.       Person who issues invoice in accordance with the provisions of the Act or rules

made thereunder, with incorrect or incomplete details or fails to account for an invoice in his books of account: An amount which may extend to five thousand rupees shall be liable to be imposed as penalty. [section 77(1)(e) of the Act]

 

 

ix.      Suppression of the value of taxable services: Penalty to an extent ranging from 100%

to 200% of the Service Tax which was not levied or paid or erroneously refunded, can
be imposed on any person, if such short levy or short payment or erroneous refund is by
reason of fraud collusion, willful mis-statement, suppression of facts; or contravention
of any of the provisions of the Act or the rules made thereunder with an intent to evade
payment of Service Tax. Such liability towards penalty would be in addition to the
Service Tax amount evaded or erroneously refunded and the interest thereon (Section 78
of the Act).

 

x.      Reduced Penalty in respect of Sl. No. (v): If the Service Tax amount as determined by

the competent authority is paid within 30 days from the date of communication of the
order, along with interest, the amount of penalty liable to be paid shall only be 25% of
the Service Tax amount so determined. The benefit of reduced penalty equivalent to
25% of the said Service Tax is available only if such lesser penalty amount is also paid
within the aforesaid period (First and second proviso to Section 78 of the Act).

 

 9.2         Is there any provision to waive the penalty under Service Tax law?

The penal provisions under Service Tax are provided under Sections 76, 77 and 78 of Finance
Act, 1994. Although the penalty is liable to be imposed for the circumstances covered under the
said provisions, the Section 80 of the Finance Act, 1994, provides provisions not to impose
penalty, for any failure referred to in the said provisions, if the Service Tax assessee proves that
there was sufficient cause for such failure. Lack of funds or time is not construed as ‘sufficient
cause’.

 

9.3     Why does  Department issue show cause notice?

When any amount is demanded as Service Tax or other dues from any person under the Finance Act, 1994 and rules made thereunder towards recovery of service tax or other dues which is not levied or paid or short levied or short paid by any person, or erroneously refunded to any person,   and/or any person is liable to penalty under the said Act/Rules, notices are issued in the interest of natural justice to enable such person to understand the charges and defend his case before an adjudicating officer.

 

9.4    Can show cause notice be waived?

 

Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise/Service Tax Officer before service of notice on him and inform the Central Excise/Service Tax Officer of such payment in writing, in such a case show cause notice will not be issued. [Refer Section 73 (3) of Finance Act, 1994]. However, sub-section (3) of Section 73 of Finance Act, 1994, is not applicable to the cases involving fraud or collusion or willful mis-statement or suppression of facts or contraventions of any of the provisions of Chapter V of the Finance Act,1994 and the rules made thereunder with intent to evade payment of Service Tax [Refer sub-section (4) of Section 73 of Finance Act, 1994].

 

10        Adjudication and determination of tax

10.1       What is meant by adjudication?

10.1.1    When show cause notices are issued under provisions of the Finance Act, 1994 charging

any person for contravention of any provisions of the said Act and rules and/or notifications issued thereunder and penal action is proposed the competent officers of the Department adjudge the case and issue orders. This process is called adjudication.

10.1.2   Often notices are issued under section 73 of the Finance Act, 1994 for determination of tax,
       and the matter is decided by a competent officer. This is also referred to adjudication in
       common parlance.

10.2.2       The monetary limits for the purpose of adjudication [determination of tax] under section

73 are as specified in the Table below (Based on C.B.E.C. Circular No. 97/8/2007-S.T., dated

10.3   Is the presence of a Chartered Accountant or lawyer necessary for adjudication?

No. The noticees can defend their case themselves. However, they may also engage any person,

duly authorized to defend their case before an adjudicating officer.

 

11             Appellate Remedies

11.1          Who should be approached when an assessee is aggrieved by an order/decision of

the Adjudicating authority subordinate to the Commissioner of Central Excise in respect of Service Tax? What is the procedure for filing the Appeal?

 

i.       An assessee aggrieved by such order / decision may file an Appeal to the

Commissioner (Appeals), in Form ST-4, in duplicate.

ii.      A copy of the order / decision appealed against should be enclosed.

iii.     The Appeal should be filed within 3 months from the date of receipt of the order/

decision.

 

iv.     There is no fee for filing an Appeal before the Commissioner of Central Excise

(Appeals) [Section 85 of the Act and Rule 8 of the STR, 1994].

 

11.2          Can the time limit of three months for filing the appeal to the Commissioner
(Appeals) be extended? If yes, under what circumstances?

Yes. If the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the Appeal within the statutory period of three months, he may allow the Appeal to be presented within a further period of three months. The law does not provide for further extension of time. [Proviso to Section 85(3) of the Act].

11.3     Can an Appeal be filed against the order / decision of the Commissioner of Central
      Excise or Commissioner (Appeals)? If so, what is the procedure for that?

 

Yes. The procedure is as follows:-

 

i.         The  Appeal  against  the  order  of  the  Commissioner  of  Central  Excise  or

Commissioner (Appeals) can be filed before the Customs, Excise and Service

Tax Appellate Tribunal (in short, CESTAT). The Appeal should be filed within

three months of the date of receipt of the order sought to be appealed against.

ii.         It should be filed in the prescribed Form (ST-5) in quadruplicate.

iii.        It should be accompanied by a certified copy of the order appealed against.

iv.       The Appeal should be accompanied by the prescribed fee based on the amount of

Service Tax and interest  demanded and penalty levied i.e. Rs.1000/- if the
amount involved is Rs.5 lakhs or less, Rs.5000/- if the amount involved is more
than Rs.5 lakhs but not exceeding Rs.50 lakhs and Rs.10,000/- if the amount
involved is more than Rs.50 lakhs. [Section 86 of the Act and Rule 9 of the STR, 1994].

 

 12     CENVAT Credit Scheme

12.1      What is CENVAT Credit Scheme with reference to Service Tax assessees?

 

The  CENVAT  Credit  Rules,  2004,  introduced  with  effect  from  10.9.2004,  provides  for
availment of the credit of the Service Tax paid on the input services/Central Excise duties paid
on inputs/capital goods/Additional Customs duty leviable under section 3 of the Customs Tariff
Act, equivalent to the duties of excise. Such credit amount can be utilized towards payment of
Service Tax by an assessee on their output services. (Refer to Rule 3 of CENVAT Credit Rules,
2004).

 

Such credit availed by a manufacturer can also be utilized for discharging their liability towards Service Tax and / or Central Excise duties [Refer Rule 3 of CENVAT Credit Rules, 2004 read with Notfn,.No.27/2007-CE(NT) dated 12.05.2007].

 

12.2     What are the duties / taxes that can be availed as credit?

As mentioned under para 12.1, Duties paid on the inputs, capital goods and the Service Tax paid on the ‘input’ services can be taken as credit. Education Cess paid on the Excise duty and Service Tax can also be taken as credit. However, the credit of such   Education Cess availed can be utilized only for payment of Education Cess relating to output service.

 

The interest and penalty amounts cannot be taken as credit.

 

 12.3           What is meant by  ‘input’,  ‘input service’ and  ‘capital goods’ for a service

provider?

These terms have been defined in the CENVAT Credit Rules, 2004. (Refer Rule 2).

  

12.4    Is it compulsory that the inputs / capital goods are to be purchased only from the
manufacturers for the purpose of availment of credit?

 

No. The inputs/capital goods can be procured from the First stage and Second stage dealers also. Those dealers should have registered themselves with the Central Excise Department. The invoices issued by them should contain proper details about the payment of duty on those goods. (Refer Rule 9 of CENVAT Credit Rules, 2004.)

 

 12.5      What are the documents prescribed for availment of the CENVAT Credit?

 

The documents on which CENVAT credit can be availed are as follows:-

 

(i)      Invoice issued by the manufacturers and his depot/ consignment agents

(ii)     Invoice issued by the Importer and his depot/consignment agents

(iii)  First stage and Second stage dealer registered with the Central Excise Department (iv)   Bill of Entry

(v)   Invoice/Bill/Challan issued by the provider of input Services
(vi)   Invoice/Bill/Challan issued by the Input Service distributor.

(vii)  Certificate issued by the Appraiser of Customs in respect of the goods imported
         through Foreign Post Office.

(viii) A Challan evidencing payment of service tax by a person liable to pay service tax
         in the service category of auxiliary insurance, goods transport, recipient of service
         from a foreign country and sponsorship.

12.6     Whether it is necessary to avail credit only after making payment against the bill /

invoice/challan in respect of input services?

Yes. Credit of Service Tax on the input services can be availed, only after making payment of
the amount indicated in the invoice / bill/challans. This is necessary because, the input service
provider will be paying the Service Tax to the Govt. only after he realizes the payment, as the
payment of Service Tax is only upon realization. [Rule 4(7) of the CENVAT Credit Rules,
2004].

The above requirement is not applicable in respect of credit of duties paid on inputs and capital goods.

 

12.7         Who is an “Input Service Distributor”?

An office of the manufacturer or provider of output service who receives invoices for the procure ment of input services and issues invoices for the purpose of distributing the credit of Service Tax paid to such manufacturer or provider of output service is an  “Input Service Distributor”. [Refer Rule 2(m) of CENVAT Credit 2004].

The credit of the tax amount so distributed to various places shall not exceed the total Service
Tax amount contained in the original invoice / bill. [Refer rule 7(a) of CENVAT Credit Rules,
2004].

 

12.8       What is the format of the invoice / bill / challan to be issued by the input service

distributor?

No specific format has been prescribed. However, the same should contain the following information:-

(i)  Name, address and Registration No. of the service provider. (ii)  Sl. No and date.

(iii) Name and address of the input service distributor.

(iv) The name and address of the recipient to whom the Service Tax credit is distributed. (v)  The amount of credit being distributed.

12.9      Whether the input service distributors should get themselves registered with the
Department? Whether they have to file any returns with the Department?

Yes.  They  have  to  register  themselves  as  per  the  provisions  made  under  Service  Tax (Registration of Special Category of Persons) Rules, 2005. They have to file half yearly returns by the end of the month following the half year. [Refer rule 3 of Service Tax (Registration of Special Category of Persons) Rules, 2005].

  

12.10     What are the records to be maintained by the persons availing credit?

 

There is no specific format of records to be maintained. However, they have to maintain adequate records showing the details such as receipt, disposal, consumption and inventory of inputs and capital goods, the amount of credit taken and utilized etc.

(Refer rule 9(5) of CENVAT Credit Rules, 2004).

 

 12.11        What should be done, if an assessee is rendering both taxable services as well as
exempted services, but the inputs and input services are common?

12.11.1         Separate accounts are to be maintained for the receipt, consumption and

inventory of input and input service meant for providing taxable output service and for use

in the exempted services. Credit should be taken only on that quantity of input  /input services which are used for the service on which Service Tax is payable. (Ref. Rule 6 of Cenvat Credit Rules, 2004)

 

12.11.2      If separate accounts are not maintained, the provider of output service shall pay

an amount equal to eight percent of value of exempted services or pay an amount equivalent

to the CENVAT credit attributable to input/input services used in, or in relation to provision

of exempted services subject to the conditions specified in sub-rule (3A) ibid.  (Ref. Rule

6(3  &   3A)  of  Cenvat  Credit  Rules,    2004  read  with  Not.No.10/2008CE   (NT)  dt.

01.03.2008.)

However, in terms of Rule  6(5) of Cenvat Credit Rules  2004, even though no separate accounts are maintained in respect of services listed in Appendix 5, CENVAT credit shall be allowed unless such services are exclusively used in or in relation to the manufacture of exempted goods or providing exempted services.

12.12.     Whether Cenvat credit is admissible on capital goods which are exclusively used in providing exempted goods ?

No.

12.12     Is untilised CENVAT credit refundable?

Refund of accumulated credit is admissible only in case of exports of finished goods or output service.    Where any input or input service is used in providing output service or manufacture of goods which are exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilized towards payment of service tax on any other output service or excise duty on other excisable goods.  If such adjustment is not possible due to any reason, it will be allowed as refund subject to the safeguards, conditions and limitations specified by the Central Government

  

13     Export of Services and taxable service used in relation to export of goods

 

13.1     What is Export of Services? Whether export of services is exempted from Service
Tax?

What constitute export of service is defined in the Export of Service Rules, 2005. The Export of taxable services is exempted from Service Tax.

 

13.2       What constitutes export of services?

The Export of Services, Rules,  2005 specifies  3 categories of cross border transaction of services and conditions that will be construed as export of services in cases of:

 

i.       Specified services which are provided in relation to immovable properties situated

outside India - [See list of services in Appendix-4] (Refer Rule 3(1)(i) of Export of Service Rules,2005).

 

ii.       Specified services which are partly performed outside India - [See list of services in

Appendix - 4] (Ref. Rule 3(1)(ii) of Export of Service Rules,2005).

 

iii.       the remaining taxable services, barring a few exceptions, when provided in relation

to business or commerce, to a recipient located outside India, and when such
services are provided not in relation to business or commerce, it should be provided
to  a  recipient  located  outside  India  at  the  time  of  provision  of  such  service.

However, where such recipient has commercial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of service only when order for provision of such service is made from any of his commercial establishment or office located outside India. [See list of services in   Appendix - 4] (Ref. Rule 3(I)(iii) of Export of Service Rules,2005).

Further conditions to be met for treating provisions of any taxable service as export of service
are -

 

i.        such service is provided from India and used outside India; and

ii.        payment for such service is received by the service provider in convertible foreign

exchange.

[Ref. Rule 3(2) of the Export of Service Rules, 2005].

 

Thus, each transaction has to be seen individually to ascertain if it constitutes export of services, fulfilling the requisite parameters.

 

13.3   If export proceeds are received in Indian currency, will it be denied export benefit?

If export proceeds are received in Indian currency, no export benefits shall be available.
           (Ref. Rule 3(2)(b) of Export of Service Rules,2005)

 

 13.4   If a foreign national pays in convertible foreign currency for service received by him in India, and he returns to foreign country, will it be treated as export?

If services are rendered in India, it shall not be treated as export, even if it is rendered to any foreign national and he pays in convertible foreign currency.

(Ref. Rule 3(2)(a) of Export of Service Rules,2005).

13.5   What are the incentives for export of services?

 

13.5.1  Taxable  services  may  be  exported  without  payment  of  service  tax,  provided  the conditions specified in Export of Service Rules, 2005 are fulfilled.

13.5.2 Where service tax has already been paid on export of services to countries (other than Nepal and Bhutan), rebate/refund of such service tax, can be availed under notification no. 11/2005-ST dated 19.4.2005;

13.5.3 Where service tax has already been paid on the inputs and input services used in export of services to countries (other than Nepal and Bhutan), rebate/refund of such excise duty on inputs and service tax paid on input services can be availed under notification no. 12/2005-
ST dated 19.4.2005;

13.5.4 Where taxable services are exported without payment of tax, but CENVAT Credit was availed, the refund of accumulated CENVAT Credit (if cannot be fully used for payment of service tax), may be claimed as refund under rule 5 of the CENVAT Credit Rules, 2004 read with notification no. 11/2002-CE (N.T.) dated the 1^st March, 2002, as amended.

13.6     Whether service tax paid on taxable services used in relation to export of goods, Refundable?

Service tax paid on the input services used in export of goods is refundable to exporter by way
of rebate/refund in terms of notification No.  41/2001-Central Excise  (N.T.), dated the  26th
June, 2001. Further CENVAT Credit accumulated on such input services is also refundable

under rule  5 of the CENVAT Credit Rules,  2004, subject to the observance of procedure prescribed in notification No. 5/2006-CE (NT) dated the 14^th March, 2006.

 

13.7      Where can one file the rebate claims or refund of unutilized CENVAT Credit?

The rebate claims or refund of utilized CENVAT Credit application has to be filed in the Central Excise or Service Tax Division/Group where the assessee is registered.

13.8.   Where can one   file claims for refund of service tax paid on taxable services used by the exporter of goods, allowed under  Notification No 41/2007-ST 6-10-2007.?

The manufacturer-exporter has to file the claim for refund to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture or warehouse

The merchant exporter can file   claim to the   Assistant Commissioner/Deputy Commissioner of
Central Excise    having jurisdiction over his registered office or head office. In case    the
merchant exporter is   registered with the department , he can file claim with the jurisdictional
office he is registered with or   in location where he is having his registered officer or head
office.

 

[ For details  please refer to CBEC Circular No 101/4/2008-ST dated 12-5-2008]

 

14      Service Tax on receipt of services from outside India   [Import of services]

 

14.1      What is the statutory provision regarding taxing of services provided from outside

India and received in India ?

Section 66A of the Finance Act, 1994, inserted with effect from 18.4.2006, provides that where any taxable service is provided or to be provided by a person who has established a business or has a fixed establishment from which the service is provided or to be provided or has his permanent address or usual place of residence, in a country other than India, and is  received by a person who has his place of business, fixed establishment, permanent address or usual place of residence, in India, such service shall be taxable service.

 

14.2      Is the recipient of service liable to pay tax for the taxable service  is provided from

outside India?

The recipient of service shall be liable to pay tax if the provider of service do not have any established business or a fixed establishment in India. However, a person carrying on a business through a branch or agency in any country shall be treated as having a business establishment in that country (including India).

14.3   Where provider of the service has his business establishments in more than one
country, which country should be treated as the country from which service is provided?

If the provider of the service (from outside India) has his business establishments in more than one country, the country, where the establishment of the provider of service directly concerned with the provision of service is located, shall be treated as the country from which the service is provided or to be provided. (Ref.: Section 66A (2)  of the Finance Act,1994.)

 

 

14.4       What will be ‘usual place of residence’ of a body corporate?

Usual  place  of  residence,  in  relation  to  a  body  corporate,  means  the  place  where  it  is incorporated or otherwise legally constituted. (Ref.: Explanation 2   to sub-section 2 of Section 66A of the Finance Act,1994.)

 

14.5          What constitutes import of services?

The Taxation of Services (Provided from Outside India and Received in India) Rules, 2006

specifies 3  categories  of  cross  border  transaction  of  services  and conditions  that  will  be

construed as import of services, namely, -

i.      specified services which are provided in relation to immovable properties situated in

India - [See list of services in Appendix-4]

(Ref. Rule 3(i) of The Taxation of Services Rules 2006).

 

ii.      specified services which are provided partly in India -

[ See list of services in  Appendix -4]

(Ref. Rule 3(ii) of The Taxation of Services Rules 2006).

 

iii.      the remaining taxable services, barring a few exceptions, when provided in relation to

business or commerce, to a recipient located in India.   [ See list of services in  Appendix

-4]

(Ref. Rule 3(iii) of The Taxation of Services Rules 2006).

  

Thus, each transaction has to be seen individually to ascertain if it constitutes import of services, fulfilling the requisite parameters.

 

 15      Advance Ruling

15.1    What is meant by advance ruling?

Advance ruling means the determination, by the Authority, of a question of law or fact specified in the application regarding the liability to pay duty/service tax in relation to service proposed to be provided, by the applicant.   Activity means service to be provided. (See Section 96A of the Finance Act, 1994)

 

15.2    What is the scheme of advance rulings?

Authority for Advance Rulings for Excise and Customs is meant to provide binding ruling on important issues so that intending investors will have a clear-cut indication of their duty/tax liability in advance.

Since advance rulings are not appealable under the Finance Act, 1994, it assures the applicant of the finality of the tax liability and hence freedom from spending time, energy and money in legal battles which mostly become long-drawn.

 

15.3    Who can apply for an advance ruling?

i.      A     non-resident  setting  up  a  joint  venture  in  India  in  collaboration  with  a  non-

resident or a resident; or

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

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

company, which proposes to undertake any business activity in India;