Service Tax eBook 9th Edition by CA Pritam Mahure

_

9 t h E d i t i o n

1 5 J u l y 2 0 1 4

CA Pritam Mahure

This book is a compilation of key Service Tax

Legal provisions (as applicable from 1 July 2012).

Relevant amendments have been shown in red

colour/ track change. Also, Central Excise

provisions which are applicable (vide sec. 83 of

FA 1994) to ST legislation are highlighted in

green colour. For feedback/queries readers may

write to [email protected]

Service Tax -

Negative List

Regime

CA Pritam Mahure

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contents 1. ABOUT THE BOOK .............................................................................. 9

2. NEGATIVE LIST IN A NUTSHELL .................................................... 11

A. In a nutshell ..................................................................................... 11

B. Negative vis--vis Positive list regime A Comparative Analysis ............. 11

C. Rules deleted/ substituted .................................................................. 11

D. Key provisions and effective date ........................................................ 12

E. Abatement (Refer Not. No. 26/2012 and Valuation Rules) ....................... 12

F. Reverse Charge Mechanism (Refer Not. No. 30/2012-ST) ....................... 13

G. Brief Note on Negative List regime ...................................................... 15

3. EXISTING INDIRECT TAX SYSTEM IN INDIA .................................... 18

Key features of specified indirect taxes: ................................................... 18

Current Indirect tax implications on various transactions ............................ 20

4. SERVICE TAX STATUTORY PROVISIONS ....................................... 22

5. APPLICABLE CENTRAL EXCISE PROVISIONS .................................... 85

6. SERVICE TAX RULES, 1994 .............................................................. 123

1. Short title and commencement ......................................................... 123

2. Definitions ...................................................................................... 123

3. Appointment of officers .................................................................... 127

4. Registration .................................................................................... 127

4A. Taxable service distributed on invoice, bill or challan .......................... 129

4B. Issue of consignment note .............................................................. 131

5. Records .......................................................................................... 132

5A. Access to a registered premises....................................................... 132

6. Payment of service tax ..................................................................... 133

6A. Export of services.- ........................................................................ 139

7. Returns .......................................................................................... 140

7A. Returns ........................................................................................ 141

7B. Revision of return .......................................................................... 141

7C. Amount to be paid for delay in furnishing return ................................ 141

8. Form of appeals to commissioner of central excise (appeals) ................ 142

9. Form of appeals to appellate tribunal ................................................. 142

10. Procedure and facilities for large taxpayer......................................... 143

7. SERVICE TAX (DETERMINATION OF VALUE) RULES, 2006 ............... 145

1.Short title and commencement. ...................................................... 145

2.Definitions ....................................................................................... 145

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2A. Determination of value of works contract .......................................... 145

2B.Determination of value of service in relation to money changing ........... 148

2C. Determination of value of supply of food ......................................... 149

3.Manner of determination of value ....................................................... 150

4.Rejection of value ............................................................................. 150

5.Inclusion in or exclusion .................................................................... 151

6.Cases in which the commission, costs, etc., will be included or excluded . 153

8. POINT OF TAXATION RULES, 2011 .................................................. 156

1.Short title and commencement .......................................................... 156

2.Definitions ....................................................................................... 156

2A. Date of payment ........................................................................... 156

3.Determination of point of taxation ...................................................... 157

4.Determination of POT in case of change in effective rate of tax .............. 158

5. Payment of tax in case of new services .............................................. 159

7. Determination of POT in case of specified services or persons ............... 159

8.Determination of point of taxation in case of copyrights, etc .................. 160

8A. Determination of point of taxation in other cases ............................... 160

9.Transitional Provisions ...................................................................... 160

9. PLACE OF PROVISION OF SERVICES RULES, 2012 ........................... 162

1. Short title, extent and commencement .......................................... 162

2. Definitions .................................................................................. 162

3. Place of provision generally .......................................................... 165

4. Place of provision of performance based services ............................ 165

5. Place of provision of services relating to immovable property ............ 166

6. Place of provision of services relating to events ............................... 166

7. Place of provision of services provided at more than one location ...... 166

8. POPS where provider and recipient are located in taxable territory .... 166

9. Place of provision of specified services ........................................... 167

10. Place of provision of goods transportation services .......................... 167

11. Place of provision of passenger transportation service ...................... 167

12. Place of provision of services provided on board a conveyance .......... 168

13. Powers to notify .......................................................................... 168

14. Order of application of rules.......................................................... 168

10. CENVAT CREDIT RULES, 2004 ....................................................... 169

1.Short title, extent and commencement ................................................ 169

2.Definitions ....................................................................................... 169

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3.CENVAT credit .................................................................................. 175

4.Conditions for allowing CENVAT credit ................................................. 185

5. Refund of CENVAT Credit .................................................................. 190

5A.Refund of CENVAT credit to units in specified areas ............................ 191

5B. Refund of CENVAT credit ................................................................ 192

6.Obligation of a manufacturer and a provider of output service ................ 192

7.Manner of distribution of credit by input service distributor .................... 200

7A.Distribution of credit on inputs ......................................................... 201

8.Storage of input outside the factory of the manufacturer ....................... 202

9.Documents and accounts ................................................................... 202

9A.Information relating to principal inputs .............................................. 206

10.Transfer of CENVAT credit ................................................................ 207

10A. Transfer of CENVAT credit of additional duty ................................... 207

11.Transitional provision ...................................................................... 208

12.Special dispensation ........................................................................ 210

12A. Procedure and facilities for large tax payer ...................................... 210

12AAA. Power to impose restrictions in certain types of cases ................... 214

13.Power of Central Government to notify .............................................. 215

14.Recovery of CENVAT credit wrongly taken or erroneously refunded ....... 215

15.Confiscation and penalty .................................................................. 215

15A. General penalty ........................................................................... 216

16.Supplementary provision ................................................................. 216

11. SERVICE TAX VCES , 2013 ............................................................. 217

12. Service Tax Voluntary Compliance Encouragement Rules, 2013 ... 221

1. Short title and commencement ......................................................... 221

2. Definitions ...................................................................................... 221

3. Registration .................................................................................... 221

4. Form of declaration .......................................................................... 221

5. Form of acknowledgment of declaration ............................................. 221

6. Payment of tax dues ........................................................................ 221

7. Form of acknowledgement of discharge .............................................. 222

FORM VCES-2 ........................................................................................ 224

FORM VCES-3 ........................................................................................ 226

13. Notifications .................................................................................. 227

14/2012 - Research & development cess ................................................ 227

25/2012 - Mega exemption notification .................................................. 228

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26/2012 - Abatement notification .......................................................... 246

27/2012 - Exemption for foreign diplomatic mission ................................ 254

29/2012 - Exemption on property tax paid ............................................. 257

30/2012 - Reverse charge mechanism ................................................... 259

31/2012 - Exemption to gta services for exporter .................................... 265

32/2012 - Exemption of services provided by tbi and ............................... 272

33/2012 - Exemption to small service providers ...................................... 275

34/2012 - Rescinding of earlier 81 notifications ....................................... 278

35/2012 - Earlier works contract composition scheme rescinded ............... 282

28/2011 - Notified continuous supply of services ..................................... 283

39/2012 - Rebate on inputs and input services ....................................... 284

40/2012 - Exemption on services provided to sez operations .................... 291

41/2012 - Rebate for service tax paid new scheme .............................. 305

42/2012 - Exemption to service of commission agent .............................. 332

27/2012(ce) Cenvat credit refund (rule 5) .................................................... 339

43/2012 - Exemption to railways........................................................... 343

45/2012 Rcm for directors and security services ................................... 344

46/2012 STR amended for rcm for directors and security ...................... 345

47/2012 Return due date .................................................................. 346

48/2012 - Amends ST-1 and Accounting codes re-notified ........................ 347

49/2012 - Exemption to Janashri and Aam Aadmi Bima Yojana ........................... 358

1/2013 - Amendment in Service Tax Rules, 1994 ............................................. 359

2/2013 - Construction of Complex Taxable value 25% or 30% ............... 378

3/2013 - Mega Exemption Amended ...................................................... 379

4/2013 - Advance Ruling (Applicable for Public Company) ........................ 381

5/2013 - New ST-5, ST-6 and ST-7 notified ............................................ 382

6/2013 - Focus Market Scheme ............................................................. 392

7/2013 - Focus Product Scheme ............................................................ 397

8/2013 - Vishes Krishi and Gram Udyog Yojana ...................................... 400

9/2013 - Construction service Change in abatement ............................. 402

10/2013 - Service Tax Voluntary Compliance Enco. Rules notified ............. 403

11/2013 - Amends Not. No. 6/2013-ST .................................................. 404

12/2013 - Special Economic Zone (SEZ) Developer / Unit ........................ 406

13/2013 Amendment to Not. 25/2012 ......................................................... 416

1/1/2013 - AD-HOC EXEMPTION ............................................................... 417

12/2013 (CE) Amendment in 3 (5A) of CCR ................................................. 418

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14/2013 Catering in canteen .............................................................. 419

15/ 2013- Amendment in SEZ Not. ........................................................ 420

16 /2013- E-payment (1 lac) ................................................................ 421

17/2013-Amendment to FMS Not. ......................................................... 422

01/2014 Amendment in Mega Not. ............................................................ 423

02/2014 ST Governmental Authority definition ............................................ 424

03/2014-ST Forward contract sub-broker exemption ...................................... 425

05/2014-ST FMS Amendment ................................................................. 427

18/2013-C.E. (N.T.) Rescinded later .................................................... 428

01/2014-CE (NT) CENVAT Credit amendment ............................................. 429

02/2014-CE(N.T.) Amends Rule 12 ..................................................... 430

05/2014 CE (NT) Rule 7 (ISD Amendment) ............................................... 431

07/2014 CE (NT) Rescinds 18/2013 ................................................. 432

09/2014-CE(N.T.) CCR Amendment .................................................... 433

11/2014CE (N.T.) Quarterly Return ................................................... 434

12/2014CE (NT)- Refund for Partial RCM service providers ..................... 436

13/2014CE (N.T.) Rescinds Not. No. 6/2012CE (NT) ........................... 441

15/2014 - CE(N.T.) 12AAA introduced ................................................. 442

06/2014-ST Mega Not. amended ........................................................ 443

07/2014-ST SEZ refund simplified ...................................................... 447

08/2014-ST Abatement amended ....................................................... 450

09/2014-ST RCM amended ................................................................ 453

10/2014-ST RCM amended ................................................................ 455

11/2014-ST Valuation Rules amended ................................................. 457

12/2014-ST Interest rates notified ...................................................... 458

13/2014-ST POT amended ................................................................. 459

14/2014-ST POPS amended ............................................................... 461

15/2014-ST Advance Ruling for private company .................................. 463

21/2014-CE(NT) CCR amendment ...................................................... 464

14. CIRCULARS .................................................................................... 466

160/11/2012 - Applicablity of EC and SHEC ........................................... 466

161/12/2012 Accounting code for Negative List .................................... 468

163/14/2012 - Clarification on remittances ............................................. 470

164/15/2012 Clarification on vocational education ................................ 472

165/16/2012 - Circular on restoration of accounting codes ....................... 474

166/1/2013 reminder letters for insurance policies ................................ 486

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167/2/2013 - Milk transportation by rail ................................................. 487

969/03/2013-CX CESTAT Appeal forms ..................................................... 488

168/3/2013 - Clarification on Pandal and Shamiyana ............................... 492

169/4/2013 - Clarification on VCES ....................................................... 494

170/5 /2013 - Clarification on VCES ...................................................... 496

171/6/2013 - Circular on Arrest and Bail ........................................................ 501

172/7/2013 Education services Clarification ............................................... 505

173/8/2013 Restaurant clarifications .......................................................... 508

174/9/2013 VCES clarifications ................................................................ 510

175/01/2014 ST RWA Clarification ...................................................... 513

176/2/2014 ST VCES Discharge and CENVAT ........................................... 515

177/03/2014 ST Rice, paddy clarification .................................................. 516

974/08/2013-CX - Arrest and Bail ......................................................... 517

178/4/2014-ST ISD clarification ......................................................... 523

15. POTR CIRCULARS ..................................................................... 526

341/34/2010-TRU - POTR Clarifications .................................................. 526

154/5/2012-ST POTR clarification ....................................................... 530

155/6/2012-ST POTR Clarifications ..................................................... 531

158/9/2012-ST Change in Rate .......................................................... 532

162/13/2012 - Clarification on POTR...................................................... 533

16. DRAFT CIRCULAR ................................................................ 536

Draf t c i rcu lar on s ta f f bene f i ts ................................................... 536

Draft circular on service tax on air transport ........................................... 542

17. INSTRUCTIONS/ ORDERS ............................................................. 545

instructions Negative List Of Service Tax Regime .................................. 545

FILING OF ST-3 .................................................................................. 548

Order 3/2012 - Due date for filing of Service Tax return ..................................... 550

Service Tax Instruction ........................................................................ 551

Order 2/2013 - ST-3 [30 April 2013] ..................................................... 553

Order 3/2013 - ST-3 [31 August 2013] .................................................. 554

Order 4/2013 - ST-3 [10 September 2013] ............................................ 555

F.No: 137/116/2012- E-payment 1 lacs ................................................. 556

F. No. B1/19/2013-TRU (Pt.) - VCES...................................................... 558

F. No. 137/50/2013-VCES .................................................................... 560

F.No.275/05/2014-CX.8A Validity of Stay ............................................ 561

17/1/2012-CX.1 Proposed amendment in Rule 6 of CCR ........................ 562

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18. Budget 2013 ................................................................................. 564

Union FM Budget Speech (Extracts) ..................................................... 564

TRU Budget 2013 Service Tax ......................................................... 568

Article Budget 2013 Changes in Service Tax CA Pritam Mahure ......... 571

Supply of food in restaurant, sale or service? CA Pritam Mahure .......... 576

ST on Foreign Bank Charges ................................................................. 579

CEVAT Credit of ST paid under VCES ..................................................... 583

Applicability of VAT on flat .................................................................... 587

19. Interim Budget - 2014 ................................................................... 591

Service Tax - Budget 2014 changes ....................................................... 591

Economic Times - Service tax applicable on transport etc rice, cotton ........ 593

Economic Times - Tax Tribunal Posts on Pause ........................................ 595

Barter between Landowner and Developer Complex construction .......... 596

Applicability of Excise duty on Sales Tax Retention .................................. 601

Service Tax on Mid-day meal scheme .................................................... 605

CENVAT Credit - Interesting issue ........................................................ 610

20. Budget 2014 ................................................................................. 613

Budget 2014 Key Service Tax changes in chronological order ................. 613

Service Tax TRU letter ......................................................................... 618

21. FAQ on VCES CBEC ..................................................................... 633

22. Education Guide CBEC ................................................................. 645

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1. ABOUT THE BOOK

FOREWORDS (7th Edition)

The challenge of dissemination of a tax law in a cogent and lucid manner is

nearly as huge as its making. Mr. Pritam Mahure in this book has attempted to

meet the challenge with laurels coming very close to what could even be termed

as a work of art.

Indirect tax reforms in recent years have been largely guided keeping in view

the eventual goal of GST. The changes over the last couple of years in the areas

of service tax are definitely precursors in that direction. A careful understanding

and applicability of the new provisions will go a great length in helping our

smooth transition towards GST.

Taxation of services based on Negative List, together with many other significant

changes, in 2012 has refreshed the challenge of managing change once again.

Despite an elaborate effort to explain the new provisions by way of Education

Guide released by the Government, it still required considerable effort to carry

out the task in the light of experience gained from its early applicability.

Service tax law by itself is not comprehensive and relies considerably on the

provisions from other enactments. To put it in a user-friendly manner for the

tax-payers and other practitioners is an enormous challenge.

I have noticed that Mr Pritam Mahure has taken immense pains to provide

comprehensive coverage to the subject. It has been a pleasure for me to go

through the subject once again, somewhat like watching a suspense movie all

over again, knowing the ultimate truth, yet enjoying the nuances from time-to

time.

V K Garg

Joint Secretary (Tax Research Unit)

Department of Revenue

Central Board of Excise & Customs

Ministry of Finance,

Government of India

July 2013

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Special Thanks

- I would like to thank Shri J. C. Chaturvedi (DG, DGCEI) who had suggested me the

idea to write this book on Service Tax

- I would like to thank Shri. Sunil Gabhawalla under whose able guidance I learnt

Service Tax

- I would like to thank Shri. Rajan Choudhary (Addl. Commissioner of Service Tax,

Pune) for his valuable feedback for the book and guidance

- Also, would like to thank Suresh Nair (Partner, Ernst & Young) for his valuable

suggestions and expert guidance

- Also, I am grateful to Pratik Shah (Partner, SKP Business Consulting LLP) for his

valuable suggestions and feedback

About the author

- CA Pritam Mahure practices in the field of Indirect Taxes

(Service Tax, Excise and proposed GST) since more than a

decade.

- Pritam has also authored book on GST Supply Chain

Perspective for Confederation of Indian Industry (CII)

- Pritam has conducted numerous session for:

o Corporates and industry

o Government officers (Central Excise and Service Tax

Department, DGST etc),

o ASSOCHAM, CII, Marattha Chamber of Commerce and

Industry (MCCIA), Deccan Chamber of Commerce

(DCCIA), ICAI, GCM Worldwide etc.

- Pritam has also raised and represented industry specific

issues before CBEC

- Pritam is also a faculty for Indirect Tax [CA/CS/CMA]

- Pritam also writes regularly at Economic Times, Deccan

Herald, Taxindiaonline.com, Taxmann, Centax, Lexsite

etc

- For suggestions/ feedback/ queries readers may feel free to

revert at [email protected]/ +919920644648

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2. NEGATIVE LIST IN A NUTSHELL

A. In a nutshell

B. Negative vis--vis Positive list regime A Comparative Analysis

Current provisions

(Negative List)

Coverage Earlier provisions

(Positive List)

65B Definitions 65

66B Charging Section 66 and 66A

66C Determination of Place of

Provision of services

Export and Import Rules

66D Negative List Service specific

exclusions/ exemptions

66E Declared services 65 (105)

66F Interpretation Rules and

Bundled services

65A (covers classification

only)

67 and Valuation Rules

(Amended)

Valuation 67 and Valuation Rules

67A and POTR Date of determination tax rate,

value and exchange Rate

POTR

25/2012-ST One mega notification Various notifications

C. Rules deleted/ substituted

SR Rules Particulars Rationale for deletion of

rules

1 Taxation of Services (Provided

from Outside India & Received in

India) Rules, 2006

Deleted Introduction of Place of Provision of Services Rules,

2012

2 Export of Services Rules, 2005 Deleted Introduction of Place of Provision of Services Rules,

2012

3 Works Contract (Composition

Scheme for Payment of Service

Tax) Rules, 2007

Deleted Insertion of Rule 2A in the

Service Tax Valuation Rules,

2006

1. Negative List

Service is taxable unless exempt

Applicable wef 1 July 2012

2. Positive List

Service is exempt unless taxable

Applicable upto 30 June 2012

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D. Key provisions and effective date

Provisions Particulars

Negative List regime Applicable w.e.f. 1 July 2012

Applicable rate of Service Tax 12.36%

Service tax returns - For the period for April 2014 to

September 2014 returns to be filed

before 25 October 2014

E. Abatement (Refer Not. No. 26/2012 and Valuation Rules)

SR Service Taxable

1 Goods Transport Agency (GTA) (any person who pays or is

liable to pay freight either himself or through his agent for

the transportation of such goods by road in a goods carriage)

Provided that when such person is located in a non-taxable

territory, the provider of such service shall be liable to pay

service tax.

25%

2 Transport of goods by rail 30%

3 Transport of passengers by rail 30%

4 Transport of goods in a vessel from one port in India to

another

50%1

5 Transport of passengers by air 40%

6 Supply of food or any other article of human consumption or

any drink, in a restaurant / other premises

40%/

60%

7 Supply of food in convention centre, pandal, shamiana etc 70%

8 Accommodation in hotels, inns etc 60%

9 Renting of [any vehicle designed to carry passengers]2 40%

10 Package tour 25%

11 Booking accommodation 10%

12 Services other than 11 and 12 provided in relation to tour 40%

13 Financial leasing services including hire purchase 10%

1 40% wef 1 October 2014 vide Not. No. 8/2014-ST

2 Substituted as motorcab wef 1 October 2014 vide Not. No. 8/2014-ST

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14 Services in relation to chit3 70%

15 4Construction of a complex, building, civil structure or a part

thereof, intended for a sale to a buyer, wholly or partly,

except where entire consideration is received after issuance

of completion certificate by the competent authority,-

(a) for a residential unit satisfying both the following

conditions, namely:

(i) the carpet area of the unit is less than 2000 square feet;

and

(ii) the amount charged for the unit is less than rupees one crore;

(b) for other than the (a) above

25%

30%

16 Works contracts entered into for execution of original works 40%

17 Works contracts entered into for maintenance or repair or

reconditioning or restoration or servicing of any goods

70%

18 For other works contracts, not covered under sr. no. 16

and 17 , including maintenance, repair, completion and

finishing services such as glazing, plastering, floor and wall

tiling, installation of electrical fittings of an immovable

property,

60%5

F. Reverse Charge Mechanism (Refer Not. No. 30/2012-ST)

SR Service Service recipient % of ST payable

Provider Recipient

1 Provided by person who is

located in non-taxable territory

and received by any person

located in taxable territory

Any person6 Nil 100%

2 Works contract services by

individual, HUF, firm or AOP

Body corporate 50% 50%

3 In a chit business, the subscription is tendered in any one of the forms of money as

defined in section 65B(33). It would, therefore, be a transaction in money. So

considered, the transaction would fall within the exclusionary part of the definition of

the word service as being merely a transaction in moneyThe notification

No.26/2012-ST dated 20.06.2012 issued by the Government of India, Ministry of

Finance (Department of Revenue) is quashed to the extent of the entry in serial No.8

thereof. Delhi Chit Fund Association 2013-TIOL-331-HC-DEL-ST - SLP against High

Court Order Dismissed by Supreme Court [UoI Vs Delhi Chit Fund Association

2014-TIOL-23-SC-ST] 4 Not. No. 9/2013-ST dated 8 May 2013 5 70% wef 1 October 2014 vide Not. No. 11/2014-ST

6 Exemption provided to certain persons vide Sr. No. 34 of Not. No. 25/2012-ST

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3 Manpower supply for any

purposes or security services

by individual, HUF, firm or AOP

Body corporate 25% 75%

4 Renting of vehicle to any

person who is not engaged in

the similar line of business to

carry passenger by individual,

HUF, firm or AOP

- With abatement

- Without abatement

Body corporate

Nil

6050%

100%

40507%

5 Support services8 by Government and Local Authority (excluding renting and 66D (a) (i) to (iii)

Business entity Nil 100%

6 Provided or agreed to be

provided by a director of a

company to the said company

(w.e.f. 7 August 2012 vide Not.

45/2012)

Body Corporate9 Nil 100%

7 Individual advocate Business entity10 Nil 100%

8 Arbitral Tribunal Business entity11 Nil 100%

9 Sponsorship Body corporate or PF Nil 100%

7 Change effective from 1 October 2014 vide Not. No. 10/2014-ST 8 Para 4.1.7 of Education Guide: 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 entities carry out in ordinary course of operations themselves

but may obtain as services by outsourcing from others for any reason whatsoever and

shall include advertisement and promotion, construction or works contract, renting of

movable or immovable property, security, testing and analysis.

Thus services which are provided by government in terms of their sovereign right to

business entities, and which are not substitutable in any manner by any private entity,

are not support services e.g. grant of mining or licensing rights or audit of government

entities established by a special law, which are required to be audited by CAG under

section 18 of the Comptroller and Auditor-Generals (Duties, Powers and Conditions of

Service) Act, 1971 (such services are performed by CAG under the statue and cannot

be performed by the business entity themselves and thus do not constitute support

services.)

Para 4.1.8 of Education Guide: Will the services provided by Police or security

agencies to PSUs or corporate entities or sports events held by private entities

be taxable?

Yes. Services provided by government security agencies are covered by the main portion

of the definition of support service as similar services can be provided by private

entities. In any case it is also covered by the inclusive portion of the definition.

However the tax will be actually payable on reverse charge by the recipient. 9 Substituted for company from 11 July 2014 vide Not. No. 9/20141-ST 10 Exemption provided to certain persons vide Sr. No. 6 of Not. No. 25/2012-ST 11 Exemption provided to certain persons vide Sr. No. 6 of Not. No. 25/2012-ST

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10 GTA Company, P. Firm,

Factory, Society,

excise registered

assessee

Nil 100%

11 Insurance agent to insurance

companies

Insurance business Nil 100%

12 In relation to service provided

or agreed to be provided by a

recovery agent12

Banking company or a

financial institution or

a non-banking

financial company

Nil 100%

G. Brief Note on Negative List regime13

What is the significance of the changes due to the new system of taxation?

Budget 2012 proposes to usher a paradigm shift in the manner services will be taxed in

future. The transition involves shift from taxation of 119 service-specific descriptions to a

new regime whereby all services will be taxed unless they are covered by any of the

entries in the negative list or are otherwise exempted. The new system is a marked shift

by way of comprehensive taxation of the entire service sector without getting into

complex issues of classification of services.

What is the broad the scheme of new taxation?

In the new system, service tax will be levied on all services provided in a taxable

territory other than the services specified in the negative list. The key features of this

system are as follows:

At the outset service has been defined in clause (44) of section65B of the Act.

Section 66B specifies the charge of service tax which is essentially that service tax

shall be levied on all services provided or agreed to be provided in a taxable

territory, other than services specified in the negative list.

The negative list of services is contained in section 66D of the Act.

Since provision of service in the taxable territory is an important ingredient of

taxability, section 66C empowers the Central Government to make rules for

determination of place of provision of service. Under these provisions the Place of

Provision of Services Rules, 2012 have been made for which a separate and detailed

guidance paper (GPB) has been issued.

To remove some ambiguities certain activities have been specifically defined by

description as services and are referred as Declared Services (listed in section 66E).

In addition to the services specified in the negative list, certain exemptions have

been given. Most of the exemptions are proposed to be consolidated in a single

mega exemption for ease of reference.

12 Inserted from 11 July 2014 vide Not. No. 9/20141-ST 13 Relevant paras from TRU DOF No 334/1/2012-TRU dated 16 March 2012

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Principles have been laid down in section 66F of the Act for interpretation wherever

services have to be treated differentially for any reason and also for determining the

taxability of bundled services.

The system of valuation of services for levy of service tax and of availment and

utilization of Cenvat credits essentially remains the same with only incidental

changes required for the new system of taxation

What is service?

In the existing system, only the services specified in clause (105) of section 65 of the

Finance Act, 1994 are taxed under the charging section 66. In the new system, all

services, other than services specified in the negative list, provided or agreed to be

provided in the taxable territory by a person to another would be taxed under section

66B. This Note explains the various ingredients and aspects of the definition of service.

Service has been defined in clause (44) of the new section 65B and means

- any activity

- for consideration

- carried out by a person for another

- and includes a declared service.

The said definition further provides that Service does not include

- any activity that constitutes only a transfer in title of (i) goods or (ii) immovable

property by way of sale, gift or in any other manner

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

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

- fees payable to a court or a tribunal set up under a law for the time being in force

There are three explanations appended to the definition of service which are dealt with

in later part of this Guidance Note. Each of the ingredients bulleted above have been

explained in the points below.

Taxability of service

The taxability of services or the charge of service tax has been specified in section 66B

of the Act. To be a taxable a service should be

- provided or agreed to be provided by a person to another

- in the taxable territory

- and should not be specified in the negative list.

Provided in the taxable territory

- Taxable 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.

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- Detailed rules called the Place of Provision of Service Rules, 2012 have been made

which determine the place of provision of service depending on the nature and

description of service.

- Please refer to the Place of Provision of Service Rules, 2012

Rules of interpretation

Despite doing away with the service-specific descriptions, there will be some descriptions

where some differential treatment will be available to a service or a class of services.

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

and bundled services.

Principles for interpretation of specified descriptions of services

Although the negative list approach largely obviates the need for descriptions of

services, such descriptions continue to exist in the following areas

- In the negative list of services.

- In the declared list of services.

- In exemption notifications.

- In the Place of Provision of Service Rules, 2012

- In few other rules and notifications.

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3. EXISTING INDIRECT TAX SYSTEM IN INDIA

As per the Constitution of India, the taxing powers of the Central Government

encompass taxes on income (except agricultural income), excise duty on goods

manufactured in India (other than alcohol for human consumption), customs

duty, inter-state sale of goods etc. The taxing powers of the State Governments

include the power to tax agricultural income, excise duty on alcohol for human

consumption, sales tax on intra-State sale of goods etc.

On a high level basis, indirect taxes in the country can be categorised in three

baskets

- Central level indirect taxes : Customs duty, Excise duty, Service Tax etc

- State level indirect taxes: VAT, Entry Tax, Purchase Tax etc

- Local level indirect taxes: Octroi etc

The following diagram captures the aforesaid:

Key features of specified indirect taxes:

SR Indirect Tax Key features

1 Customs duty - Customs duty is applicable on import of goods into India - Customs duty is payable by the importer - Rate of Customs duty is specified in the Customs Tariff - Generic rate of Customs duty is 28.85% which comprises the

following:

Cen

tral

Go

verr

nm

ent Customs duty

Excise Duty

Service Tax

Central Sales Tax, Research & Dev. Cess

Stat

e G

ove

rnm

ent VAT/Sales Tax

Entry Tax, Purchase Tax, Entertainment tax, Elect. duty Lo

cal T

axes

Octroi / Local Body Tax

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a. Basic Customs Duty (generic rate is 10%)

b. Additional Duty of Customs in lieu of excise14 (generic rate

is 12%)

c. Additional Duty of Customs in lieu of VAT15 (generic rate is

4%)

d. Education cess16 @ 3%

- Customs duty is levied and governed under the Customs Act, 1962 and the Rules made thereunder

2 Excise duty - Excise duty is applicable on manufacture of goods in India - Manufacture typically implies a process at end the end of which

a new and different article, having a distinctive name, character

or use, emerges.

- Excise duty is payable by the manufacturer - Rate of Excise duty is specified in the Excise Tariff - Generic rate of Excise duty is 12.36% (including Cess 3%).

Further, certain goods are liable to concessional rate of Excise

duty of (i.e. 2.06%, 6.18%)

- Excise duty is levied and governed under the Excise Act, 1944 and the Rules made thereunder

3 Service Tax - Service tax is applicable on provision of all services - Service tax is not applicable on Negative list17 services and

certain exempt services18

- Service tax is payable by Service provider. However, in certain case service recipient is also liable to pay service tax19.

- Rate of Service Tax is 12.36% (including Cess 3%). Further, for certain services abatement is provided20

- Service tax is levied and governed under the Finance Act, 1994 and the Rules made thereunder

4 Research and

Development

Cess

- Research and Development (R&D) cess is applicable on import of technology through foreign collaborator

- The rate of R&D cess is 5% - R&D cess is levied and governed under Research and

Development Cess Act, 1986 and the Rules made thereunder

5 VAT/ Sales Tax - VAT / Sales tax is applicable on sale of goods within a State - VAT is payable by the seller - Rate of VAT is State specific. Rate of VAT is specified the VAT

schedule of the State

- Typically, the rate of VAT varies from 0% to 15% - VAT is levied and governed under the State specific VAT Act and

the Rules made thereunder

6 CST - CST is applicable on inter State sale of goods - CST is payable by the seller - Rate of CST is 2% provided the buyer issues C form. If the

buyer doesnt issue C form then CST is applicable at the rate equal to rate of VAT in the State from which goods are sold

- CST is levied and governed under The Central Sales Tax Act, 1956 and the Rules made thereunder

14 Also known as Counter-Veiling Duty/ CVD 15 Also known as Special Additional Duty of Customs / SACD 16 Education cess @ 2% plus Secondary and Higher Education cess @ 1% 17 Negative List of services comprises of 17 services and is specified under Section 66D

of Finance Act, 1994 18 Exemption is provided to 39 services vide Not. No. 25/2012-ST 19 Situations where service recipient is liable to pay ST (as recipient of service) is

specified in Not. No. 30/2012-ST 20 Abatement to various services is specified under Not. No. 26/2012-ST and Service Tax

(Determination of Value of Services) Rules, 2006

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7 Entry Tax - Entry tax is applicable on entry of specified goods in the State for sale, use or consumption

- Entry tax is levied by various States in India - Entry tax is levied and governed under State specific Entry Tax

Act and the Rules made thereunder

8 Octroi / Local

Body Tax (LBT)

- Octroi is levied by the Municipal Corporation on entry of specified goods in their jurisdiction for sale, use or consumption

- Octroi is levied by various Municipal Corporations in the State of Maharashtra (such as Mumbai, Thane, Pune etc)

- Octroi is levied and governed under Rules made by the Municipal Corporations

- LBT is proposed to be introduced by substituting Octroi. 9 Purchase Tax - Purchase tax is applicable on purchase of specified goods

- Purchase Tax is a major source of revenue for Punjab and Haryana

- In Punjab, Purchase Tax is levied under Punjab Value Added Tax Act, 2005

- Its pertinent to note that in 2012, Maharashtra has also introduced Purchase Tax on cotton and oil seeds

10 Entertainment

tax

- Entertainment tax is applicable on movie tickets, commercial shows etc

- Entertainment tax is levied by the State Governments - The rate of entertainment tax varies from 0% to 110%21 - This source of revenue has grown with the advent of Pay

Television Services in India. Since, entertainment is being

provided through the services such as Broadcasting Services,

DTH Services, Pay TV Services, Cable Services, etc. The

component of entertainment is intrinsically intertwined in the

transaction of service, that it cannot be separated from the

whole transaction. Given the nature of transaction of service, it

is being subjected to tax by the Union and the State

governments both22

Current Indirect tax implications on various transactions

A transaction in an economy can be one of the following type:

a. Transaction in goods:

o Trading (i.e. buying and subsequently selling the goods)

o Manufacturing and subsequently selling of goods

b. Transaction is services (such as provision of logistics services, advisory

services, courier services etc)

c. Transaction involving both goods and services (i.e. works contract such as

contract for construction of compound wall wherein material alongwith

labour is provided by the contractor)

d. Transaction in immovable property

e. Other transactions (such as employment, grants etc)

21 Source www.filmtvguildindia.org 22 Source www.en.wikipedia.org

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Transactions in an economy are subject to indirect taxes. We have given below

the typical indirect tax implications on the aforesaid transactions:

SR Activity Tax applicable

1 Trading Sale to a customer located in same State (Intra-

State sale)

Value Added Tax23 (VAT) would be applicable on the sale to the customer

2 Trading Sale to a customer located in different State

(inter-State sale)

Central Sales Tax (CST) would be applicable on the customer sale to the customer

3 Manufacturing and

subsequently intra-State sale of goods

- Excise duty on manufacture of goods - VAT on sale of goods

4 Manufacturing and

subsequently inter-State sale of goods

- Excise duty on manufacture of goods - CST on sale of goods

5 Provision of services Service Tax24 6 Works contracts (i.e.

transaction involving both

goods and services)

- VAT on goods portion in works contract - Service Tax on service portion in the

works contract 7 Transaction of sale of an

completed25 immovable property

Stamp duty

8 Other transactions (such as employment, donation etc)

Income from salary, donation etc is subject matter of Income Tax

Apart from the aforesaid taxes, certain States and Municipal Corporations also

levy Entry Tax, Octroi for entry of goods for consumption/ sale in their

respective jurisdiction.

From the aforesaid discussion, it can be observed from the above that currently

the indirect tax system in the India is governed by the taxable events (such as

manufacture, sale, provision of service etc). However, this approach to levy and

collect indirect tax has its own limitations and it results in inefficiency in certain

cases due to non-availability of input tax credit.

23 Also known as Sales tax 24 However, certain specified services such as entertainment, advertisement etc may be

liable to State VAT 25 W.e.f. 1 July 2010, Service tax has been made applicable on sale of property before

completion certificate is received for the same.

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4. SERVICE TAX STATUTORY PROVISIONS

SECTIONS 64 TO 96-I (CHAPTERS V and VA) OF THE FINANCE ACT, 1994

PROVIDING FOR SERVICE TAX)

SECTION 64. Extent, commencement and application.

(1) This Chapter extends to the whole of India except the State of Jammu and

Kashmir.

(2) It shall come into force on such date as the Central Government may, by

notification in the Official Gazette, appoint.

(3) It shall apply to taxable services provided on or after the commencement of

this Chapter.

65B. Interpretations26.

In this Chapter, unless the context otherwise requires,-

(1) "actionable claim" shall have the meaning assigned to it in section 3 of

the Transfer of Property Act, 1882 (4 of 1882.);

(2) "advertisement" means any form of presentation for promotion of, or

bringing awareness about, any event, 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;

(3) "agriculture" means the cultivation of plants and rearing of all life-forms of

animals, except the rearing of horses, for food, fibre, fuel, raw material or

other similar products;

(4) "agricultural extension" means application of scientific research and

knowledge to agricultural practices through farmer education or training27;

26 Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012 27 From the language it may be stated that the exemption is restricted to Application of

scientific research and knowledge to agricultural practices through farmer education

or training. The term farmer precedes education or training. Herein the context in

which the term education or training is used needs to be understood. Typically, the

farmers in India are either illiterate or less educated. Thus, a knowledge sharing

platform, per-se, which adds knowledge and thus educate or train the farmers would

become eligible. Further, the exemption is available for application of Scientific

research and knowledge to agricultural practices. Thus, in case scientific research,

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(5) "agricultural produce" means any produce of agriculture on which either

no further 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 market28;

(6) "Agricultural Produce Marketing Committee or Board" means any

committee or board constituted under a State law for the time being in force

for the purpose of regulating the marketing of agricultural produce;

(7) "aircraft" has the meaning assigned to it in clause (1) of section 2 of the

Aircraft Act, 1934 (22 of 1934.);

(8) "airport" has the meaning assigned to it in clause (b) of section 2 of the

Airports Authority of India Act, 1994 (55 of 1994.);

(9) "amusement facility" means a facility where fun or recreation is provided

by means of rides, gaming devices or bowling alleys in amusement parks,

amusement arcades, water parks, theme parks or such other places but does

not include a place within such facility where other services are provided;

knowledge, know-how etc about agricultural practices etc is shared with the farmers for

application in farm then the same will be eligible for exemption.

28 The Finance Act 1994 exempts storage or warehousing of agricultural produce. In this

context, question had arisen as to whether rice is an agricultural produce or not? In

this regard, the Hble Finance Minister had vide letter dated 9 November 2013 had

clarified that paddy is an agricultural produce but rice is not since it is subject to

processing (de-husking etc) and it will not qualify as agricultural produce and thus its

storage, warehousing etc will be liable to service tax. Now, as a relief, vide Notification

No. 4/2014-ST dated 17 February 2014, the Finance Ministry has exempted storage or

warehousing, loading, unloading, packing of rice from service tax.

However, this Notification is half-hearted as the exemption is provided but it will be

applicable for period from 17 February 2014 onwards (i.e. prospective), thus implying

that the Government considers this service was taxable prior to 17 February 2014.

This leads to a paradox as the Government thinks the storage, warehousing etc of rice

as exempt with effect from 17 February 2014 onwards but taxable prior to 17 February

2014. Though the interpretation of the Finance Ministry that rice is not an agricultural

produce is itself doubtful still the warehousing industry may receive notices asking

them to pay service tax for the period prior to 17 February 2014. In our view, it is of

atmost importance that the aforesaid services are exempted retrospectively.

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(10) "Appellate Tribunal" means the Customs, Excise and Service Tax

Appellate Tribunal constituted under section 129 of the Customs Act, 1962

(52 of 1962.);

(11) "approved vocational education course" means,-

(i) a course run by an industrial training institute or an industrial training centre

affiliated to the National Council for Vocational Training or State Council for

Vocational Training29 offering courses in designated trades notified under the

Apprentices Act, 1961 (52 of 1961.); or

(ii) 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, Union Ministry of Labour and Employment; or

(iii) a course run by an institute affiliated to the National Skill Development

Corporation set up by the Government of India;30

(12) "assessee" means a person liable to pay tax and includes his agent;

(13) "associated enterprise" shall have the meaning assigned to it in section

92A of the Income-tax Act, 1961 (43 of 1961.);

(14) "authorised dealer of foreign exchange" shall have the meaning

assigned to "authorised person" in clause (c) of section 2 of the Foreign

Exchange Management Act, 1999 (42 of 1999.);

(15) "betting or gambling" means putting on stake something of value,

particularly money, with consciousness of risk and hope of gain on the

outcome of a game or a contest, whose result may be determined by chance

or accident, or on the likelihood of anything occurring or not occurring;

(16) "Board" means the Central Board of Excise and Customs constituted

under the Central Boards of Revenue Act, 1963 (54 of 1963.);

(17) "business entity" means any person ordinarily carrying out any activity

relating to industry, commerce or any other business or profession;

29 Applicable from 10 May 2013 30 Applicable from 10 May 2013

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(18) "Central Electricity Authority" means the authority constituted under

section 3 of the Electricity (Supply) Act, 1948 (54 of 1948.);

(19) "Central Transmission Utility" shall have the meaning assigned to it in

clause (10) of section 2 of the Electricity Act, 2003 (36 of 2003.);

(20) "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 or indirectly, to carry or accompany such

documents, goods or articles;

(21) "customs station" shall have the meaning assigned to it in clause (13) of

section 2 of the Customs Act, 1962 (52 of 1962.);

(22) "declared service" means any activity carried out by a person for

another person for consideration and declared as such under section 66E;

(23) "electricity transmission or distribution utility" means the Central

Electricity Authority; a State Electricity Board; the Central Transmission

Utility or a State Transmission Utility notified under the Electricity Act, 2003

(36 of 2003.); or a distribution or transmission licensee under the said Act,

or any other entity entrusted with such function by the Central Government

or, as the case may be, the State Government;

(24) "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, sporting event,

pageants, award functions, dance, musical or theatrical performances

including drama, ballets or any such event or programme;

(25) "goods" means every kind of movable property other than actionable

claim and money; and includes securities31, growing crops, grass, and things

attached to or forming part of the land which are agreed to be severed

before sale or under the contract of sale;

31 Securities is included in the definition of goods so as to exclude the same from the

definition of service (as service excludes transaction in goods)

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(26) "goods transport agency" means any person who provides service in

relation to transport of goods by road and issues consignment note, by

whatever name called32;

(27) "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 (80

of 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;

(28) "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 being manipulated or

providing interactivity to a user, by means of a computer or an automatic

data processing machine or any other device or equipment;

(29) "inland waterway" means national waterways as defined in clause (h) of

section 2 of the Inland Waterways Authority of India Act, 1985 (82 of

1985.) or other waterway on any inland water, as defined in clause (b) of

section 2 of the Inland Vessels Act, 1917 (1 of 1917.);

(30) "interest" means interest payable in any manner in respect of any

moneys borrowed or debt incurred (including a deposit, claim or other

similar right or obligation) but does not include any service fee or other

charges in respect of the moneys borrowed or debt incurred or in respect of

any credit facility which has been utilised;

32 In the case of U P State Sugar Corp Ltd [2011 (24) S.T.R. 423 (Tri - Del)] the Tribunal

prima-facie held that as no proforma for Consignment Note is prescribed hence issue of

formal Consignment Note not mandatory for levy of Service tax [Stay case]

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(31) "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 Government with, the control or management of a

municipal or local fund;

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

2006 (41 of 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;

(32) "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 reading of the fare chargeable at any moment and that is charged accordingly under the conditions of its permit

issued under the Motor Vehicles Act, 1988 (59 of 1988.) and the rules made thereunder but does not include radio taxi33;

(33) "money" means legal tender, cheque, promissory note, bill of exchange,

letter of credit, draft, pay order, traveller cheque, money order, postal or

electronic remittance or any similar instrument but shall not include any

currency that is held for its numismatic value;

(34) "negative list" means the services which are listed in section 66D;

(35) "non-taxable territory" means the territory which is outside the taxable

territory34;

(36) "notification" means notification published in the Official Gazette and the

expressions "notify'' and "notified" shall be construed accordingly;

(37) "person35" includes,-

33 With effect from date to be notified 34 Non-taxable territory would mean Jammu & Kashmir and rest of the world

35 It may be noted that in the Positive List Regime (i.e. upto 30 June 2012) the term

'person' was not defined in the Finance Act, 1994 or Rules made thereunder. Thus

upto 30.06.2012 the definition of the term person as defined in the General Clauses

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(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;

(38) "port" has the meaning assigned to it in clause (q) of section 2 of the

Major Port Trusts Act, 1963 (38 of 1963.) or in clause (4) of section 3 of

the Indian Ports Act, 1908 (15 of 1908.);

(39) "prescribed" means prescribed by rules made under this Chapter;

(39a) print media means,

(i) book as defined in sub-section (1) of section 1 of the Press and Registration

of Books Act, 1867, but does not include business directories, yellow pages

and trade catalogues which are primarily meant for commercial purposes;

(ii) newspaper as defined in sub-section (1) of section 1 of the Press and

Registration of Books Act, 186736

(40) "process amounting to manufacture or production of goods37"

means a process on which duties of excise are leviable under section 3 of

the Central Excise Act, 1944 (1 of 1944) or the Medicinal and Toilet

Preparations (Excise Duties) Act,195538 or any process amounting to

Act, 1897 should be referred to, which defines the term person as Sec.3 (42)

"person" shall include any company or association or body of individuals, whether

incorporated or not; However, from 1.07.2012 as the term person is specifically

defined ,it should be referred. 36 With effect from date to be notified 37 Business Support Services - Processes amounting to manufacture - Same activity

cannot be considered as manufacturing and subjected to Excise levy and also

considered as service and subjected to Service Tax Jubilant Industries Limited

[2013 (9) TMI 358 - CESTAT NEW DELHI]

38 Applicable from 10 May 2013

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manufacture of alcoholic liquors for human consumption, opium, Indian

hemp and other narcotic drugs and narcotics on which duties of excise are

leviable under any State Act for the time being in force;

(41) "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 of the said

immovable property and includes letting, leasing, licensing or other similar

arrangements in respect of immovable property;

(42) "Reserve Bank of India" means the bank established under section 3 of

the Reserve Bank of India Act, 1934 (2 of 1934.);

(43) "securities" has the meaning assigned to it in clause (h) of section 2 of

the Securities Contract (Regulation) Act, 1956 (42 of 1956.);

(44) "service" means any activity carried out by a person for another for

consideration, and includes a declared service, but shall 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

(ia) such transfer, delivery or supply of any goods which is deemed to be a

sale within the meaning of clause (29A) of article 366 of the Constitution;

or".

(ii) a transaction in money or actionable claim39;

39 In the case of Future Gaming Solutions India Pvt Ltd 2013-TIOL-904-HC-Sikkim-ST,

the High Court held that:

70. In view of the facts and circumstances and the discussions, our conclusions are as

under:-

(i) In the light of Sub-Section (1) to Section 65B read with Sub-Section (44)

thereof lottery is excluded from the definition of 'service' being 'actionable

claim

(iii) The activity of the Petitioner comprising of promotions, organising, reselling

or any other manner assisting in arranging of lottery tickets of the State

Lotteries does not establish the relationship of a principal or an agent but

rather that of a buyer and a seller and, on principal to principal basis in view of

the nature of the transaction consisting of bulk purchases of lottery tickets by

the Petitioner from the State Government on full payment on a discounted price

as a natural business transaction and, other related features like there being no

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

relation to his employment;

(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 clause shall 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 any consideration 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 the Constitution in that capacity; or

(C) the duties performed by any person as a Chairperson or a Member or a

Director in a body established by the Central Government or State

Governments or local authority and who is not deemed as an employee

before the commencement of this section.

Explanation 1A- For the purposes of this clause, transaction in money shall not

include, any activity relating to the use of money or its conversion by cash or by

any other mode, from one form, currency or denomination to another form,

currency or denomination for which a separate consideration is charged:".

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 shall be treated as distinct persons40;

(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 persons41.

privity of contract between the State Government and the stockists, agents,

resellers under the Petitioner 40 In view of this clause, services provided by club to its members will attract service tax

41 It may be noted that this clause would cover Jammu & Kashmir branch providing

services to another Branch in say Pune or vice-versa

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Explanation 3.- A person carrying on a business through a branch or agency or

representational office in any territory shall be treated as having an

establishment in that territory;

(45) "Special Economic Zone" has the meaning assigned to it in clause (za)

of section 2 of the Special Economic Zones Act, 2005 (28 of 2005.);

(46) "stage carriage" shall have the meaning assigned to it in clause (40) of

section 2 of the Motor Vehicles Act, 1988 (59 of 1988.);

(47) "State Electricity Board" means the Board constituted under section 5 of

the Electricity (Supply) Act, 1948 (54 of 1948.);

(48) "State Transmission Utility" shall have the meaning assigned to it in

clause (67) of section 2 of the Electricity Act, 2003 (36 of 2003.);

(49) "support services" means infrastructural, operational, administrative,

logistic, marketing or any other support of any kind comprising functions

that entities carry out in ordinary course of operations themselves but may

obtain as services by outsourcing from others for any reason whatsoever and

shall include advertisement and promotion, construction or works contract,

renting of immovable property, security, testing and analysis;

(50) "tax" means service tax leviable under the provisions of this Chapter;

(51) "taxable service" means any service on which service tax is leviable

under section 66B ;

(52) "taxable territory" means the territory to which the provisions of this

Chapter apply;

(53) "vessel" has the meaning assigned to it in clause (z) of section 2 of the

Major Port Trusts Act, 1963 (38 of 1963.);

(54) "works contract" means a contract wherein transfer of property in goods

involved in the execution of such 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, repair, maintenance,

renovation, alteration of any moveable or immovable property or for carrying

out any other similar activity or a part thereof in relation to such property;

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(55) words and expressions used but not defined in this Chapter and defined in

the Central Excise Act, 1944 ( 1 of 1944.) or the rules made thereunder,

shall apply, so far as may be, in relation to service tax as they apply in

relation to a duty of excise.'

66B. Charge of service tax on and after Finance Act, 201242. There shall be

levied a tax (hereinafter referred to as the service tax) at the rate of twelve per

cent. on the 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. 43

Explanation.- For the removal of doubts, it is hereby clarified that the references to the provisions of section 66

in Chapter V of the Finance Act, 1994(32 of 1994) or any other Act, for the purpose of levy and collection of

service tax, shall be construed as references to the provisions of section 66B

4466BA.

(1) For the purpose of levy and collection of service tax, any reference to section

66 in the Finance Act, 1994 or any other Act for the time being in force, shall

be construed as reference to section 66B thereof.

(2) The provisions of this section shall be deemed to have come into force on the

1st day of July, 2012

66C. Determination of place of provision of service45.

(1) The Central Government may, having regard to the nature and

description of various services46, by rules made 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.

42 Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012 43 Omitted from 10 May 2013 44 Applicable from 10 May 2013 45 Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012 46 From the language used in the section 66C it may be construed that section 66C

permits determination of place of provision by having regard to the nature and

description of various services. However, this principle is completely ignored in

Rule 8 of Place of Provision of Services Rules, 2012

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66D. Negative list of services47. The negative list shall comprise of the

following services, namely:

(a) services by Government or a local authority excluding the following services

to the extent they are not covered elsewhere

(i) services by the Department of Posts by way of speed post, express parcel

post, life insurance and agency services provided to a person other than

Government48;

(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 business entities;

(b) services by the Reserve Bank of India49;

(c) services by a foreign diplomatic mission located in India50;

(d) services relating to agriculture or agricultural produce by way of

(i) agricultural operations directly related to production of any agricultural

produce including cultivation, harvesting, threshing, plant protection or

seed 51testing;

(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 bulk packaging and such

like operations which do not alter the essential characteristics of

agricultural produce but make it only marketable for the primary

market52;

(iv) renting or leasing of agro machinery or vacant land with or without a

structure incidental to its use;

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

produce;

47 Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012 48 Only specific services such as speed post etc are liable to Service Tax. Thus, basic mail

service, money order service, pension payment etc is not liable to Service Tax 49 Services provided BY RBI are exempt (and not TO RBI) 50 This exemption seems to be given in view of Vienna Convention (which provides for

grants immunity from local laws to the missions) 51 Omitted from 10 May 2013 52 Such as shelling of paddy or cleaning of wheat

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(vi) agricultural extension services53;

(vii) services by any Agricultural Produce Marketing Committee or Board

or services provided by a commission agent for sale or purchase of

agricultural produce;

(e) trading of goods54;

(f) any process amounting to manufacture or production of goods55;

56 (g) selling of space or time slots for advertisements other than advertisements

broadcast by radio or television in print media57;

(h) service by way of access to a road or a bridge on payment of toll charges58;

(i) betting, gambling or lottery59;

(j) admission to entertainment events or access to amusement facilities60;

(k) transmission or distribution of electricity by an electricity transmission or

distribution utility61;

(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 law62 for the time being in force;

53 As per Section 65B (4) "agricultural extension" means application of scientific

research and knowledge to agricultural practices through farmer education or training 54 Refer Entry No. 54 to List II (State List) in Seventh Schedule to Constitution of India

which reads as Taxes on the sale or purchase of goods other than newspapers, subject

to the provisions of entry 92A of List I 55 Refer Entry No. 84 to List I (Union List) in Seventh Schedule to Constitution of India

which reads as Duties of excise on tobacco and other goods manufactured or produced

in India except

(a) alcoholic liquors for human consumption;

(b) opium, Indian hemp and other narcotic drugs and narcotics,

but including medicinal and toilet preparations containing alcohol or any substance

included in sub-paragraph (b) of this entry. Also, refer Entry 51 of State List. 56 Refer Entry No. 55 to List II (State List) in Seventh Schedule to Constitution of India

which reads as Taxes on advertisements other than advertisements published in the

newspapers and advertisements broadcast by radio or television 57 Effective from a date to be notified 58 Refer Entry No. 59 to List II (State List) in Seventh Schedule to Constitution of India

which reads as Tolls 59 Refer Entry No. 34 to List II (State List) in Seventh Schedule to Constitution of India

which reads as Betting and gambling 60 Refer Entry No. 62 to List II (State List) in Seventh Schedule to Constitution of India

which reads as Taxes on luxuries, including taxes on entertainments, amusements,

betting and gambling 61 Refer Entry No. 53 to List II (State List) in Seventh Schedule to Constitution of India

which reads as Taxes on consumption or sale of electricity

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(iii) education as a part of an approved vocational education course;

(m) services by way of renting of residential dwelling for use as residence;

(n) services by way of

(i) extending deposits, loans or advances in so far as the consideration is

represented by way of interest or discount;

(ii) inter se sale or purchase of foreign currency amongst banks or authorised

dealers of foreign exchange or amongst banks and such dealers;

(o) service of transportation of passengers63, with or without accompanied

belongings, by

(i) a stage carriage;

(ii) railways in a class other than

(A) first class; or

(B) an airconditioned coach;

(iii) metro, monorail or tramway;

(iv) inland waterways;

(v) public transport, other than predominantly for tourism purpose, in a

vessel, between places located in India; and

(vi) metered cabs, radio taxis64 or auto rickshaws;

(p) services by way of transportation of goods65

(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 up to the customs

station of clearance; or

(iii) by inland waterways;

(q) funeral, burial, crematorium or mortuary services including transportation of

the deceased.

62 The legislature has not used the expression "conferred by law" or "conferred by

statute". Thus even if the certificate/degree/diploma/qualification is not the product of

a statute but has approval of some kind in 'law', would be exempt [2013-TIOL-430-HC-

DEL-ST] 63 Refer Entry No. 56 to List II (State List) in Seventh Schedule to Constitution of India

which reads as Taxes on goods and passengers carried by road or on inland

waterways 64 Effective from a date to be notified 65 Ibid

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66E Declared Services66. The following shall constitute declared services,

namely:

(a) renting of immovable property67;

(b) construction 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 authority68.

Explanation. For the purposes of this clause,

(I) the expression "competent authority" means the Government or any

authority authorised to issue completion certificate under any law for the time

being in force and in case of non-requirement of such certificate from such

authority, from any of the following, namely:

(A) architect registered with the Council of Architecture constituted under the

Architects Act, 1972 (20 of 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 existing civil structure;

(c) temporary transfer or permitting the use or enjoyment of any intellectual

property right69;

(d) development, design, programming, customisation, adaptation, upgradation,

enhancement, implementation of inform