This document is a book on India's service tax regime written by CA Pritam Mahure. It provides an overview of key aspects of the negative list system of service taxation implemented in India in 2012, including definitions of terms, statutory provisions, rules, notifications and circulars. It aims to help readers understand and apply the new provisions in a clear manner. The book received praise from a senior government official for its comprehensive coverage of the subject and attempt to make the tax law accessible.

1. _
Service Tax Negative List
Regime
CA Pritam Mahure
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 capritam@gmail.com
8th
Edition
14 January 2014

2. contents
1. ABOUT THE BOOK ..............................................................................8
2. NEGATIVE LIST – IN A NUTSHELL .................................................... 10
A. In a nutshell ..................................................................................... 10
B. Negative vis-à-vis Positive list regime – A Comparative Analysis ............. 10
C. Rules deleted/ substituted .................................................................. 10
D. Key provisions and effective date ........................................................ 11
E. Abatement (Refer Not. No. 26/2012 and Valuation Rules)....................... 11
F. Reverse Charge Mechanism (Refer Not. No. 30/2012-ST) ....................... 13
G. Brief Note on Negative List regime ...................................................... 14
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 ..................................... 79
6. SERVICE TAX RULES, 1994 .............................................................. 113
1. Short title and commencement ......................................................... 113
2. Definitions ...................................................................................... 113
3. Appointment of officers .................................................................... 117
4. Registration .................................................................................... 117
4A. Taxable service to be provided or credit to be distributed on invoice .... 119
4B. Issue of consignment note .............................................................. 121
5. Records .......................................................................................... 121
5A. Access to a registered premises....................................................... 122
6. Payment of service tax ..................................................................... 123
6A. Export of services.- ........................................................................ 129
7. Returns .......................................................................................... 129
7A. Returns ........................................................................................ 130
7B. Revision of return .......................................................................... 130
7C. Amount to be paid for delay in furnishing the prescribed return ........... 131
8. Form of appeals to commissioner of central excise (appeals) ................ 132
9. Form of appeals to appellate tribunal ................................................. 132
10. Procedure and facilities for large taxpayer......................................... 132
7. SERVICE TAX (DETERMINATION OF VALUE) RULES, 2006 ............... 134
1.Short title and commencement. — ...................................................... 134
2.Definitions ....................................................................................... 134
Page 2 of 695

3. 2A. Determination of value of service portion in a works contract .............. 134
2B.Determination of value of service in relation to money changing ........... 137
2C. Determination of value of service portion involved in supply of food .... 138
3.Manner of determination of value ....................................................... 139
4.Rejection of value ............................................................................. 139
5.Inclusion in or exclusion .................................................................... 140
6.Cases in which the commission, costs, etc., will be included or excluded 142
8. POINT OF TAXATION RULES, 2011 .................................................. 145
1.Short title and commencement .......................................................... 145
2.Definitions ....................................................................................... 145
2A. Date of payment ........................................................................... 145
3.Determination of point of taxation ...................................................... 146
4.Determination of point of taxation in case of change in rate of tax .......... 147
5. Payment of tax in case of new services .............................................. 148
7. Determination of point of taxation in case of specified services /persons 148
8.Determination of point of taxation in case of copyrights, etc .................. 149
8A. Determination of point of taxation in other cases ............................... 149
9.Transitional Provisions ...................................................................... 149
9. PLACE OF PROVISION OF SERVICES RULES, 2012........................... 151
1.
Short title, extent and commencement .......................................... 151
2.
Definitions .................................................................................. 151
3.
Place of provision generally .......................................................... 153
4.
Place of provision of performance based services ............................ 154
5.
Place of provision of services relating to immovable property ............ 154
6.
Place of provision of services relating to events ............................... 155
7.
Place of provision of services provided at more than one location ...... 155
8.
POPS where provider and recipient are located in taxable territory .... 155
9.
Place of provision of specified services ........................................... 155
10.
Place of provision of goods transportation services .......................... 155
11.
Place of provision of passenger transportation service ...................... 156
12.
Place of provision of services provided on board a conveyance .......... 156
13.
Powers to notify .......................................................................... 156
14.
Order of application of rules.......................................................... 156
10. CENVAT CREDIT RULES, 2004 ....................................................... 157
1.Short title, extent and commencement................................................ 157
2.Definitions ....................................................................................... 157
Page 3 of 695

4. 3.CENVAT credit .................................................................................. 163
4.Conditions for allowing CENVAT credit ................................................. 173
5. Refund of CENVAT Credit .................................................................. 176
5A.Refund of CENVAT credit to units in specified areas ............................ 178
5B. Refund of CENVAT credit in case of reverse charge basis .................... 178
6.Obligation of a manufacturer or output service provider ....................... 179
7.Manner of distribution of credit by input service distributor .................... 187
7A.Distribution of credit on inputs ....................................................... 188
8.Storage of input outside the factory of the manufacturer ....................... 188
9.Documents and accounts ................................................................... 188
9A.Information relating to principal inputs .............................................. 192
10.Transfer of CENVAT credit ................................................................ 193
10A. Transfer of CENVAT credit of additional duty ................................... 193
11.Transitional provision ...................................................................... 195
12.Special dispensation........................................................................ 196
12A. Procedure and facilities for large tax payer ...................................... 197
12AAA. Power to impose restrictions in certain types of cases ................... 200
13.Power of Central Government to notify goods for deemed credit ........... 201
14.Recovery of CENVAT credit wrongly taken / erroneously refunded......... 201
15.Confiscation and penalty .................................................................. 201
15A. General penalty ........................................................................... 202
16.Supplementary provision ................................................................. 202
11. SERVICE TAX VCES, 2013 .............................................................. 203
12. Service Tax VCES Rules, 2013 ....................................................... 207
1. Short title and commencement ......................................................... 207
2. Definitions ...................................................................................... 207
3. Registration .................................................................................... 207
4. Form of declaration .......................................................................... 207
5. Form of acknowledgment of declaration ............................................. 207
6. Payment of tax dues ........................................................................ 207
7. Form of acknowledgement of discharge .............................................. 208
FORM VCES-2 ...................................................................................... 210
FORM VCES-3 ...................................................................................... 211
13. Notifications.................................................................................. 212
14/2012 - Research & Development cess ............................................... 212
25/2012 - Mega exemption notification .................................................. 213
Page 4 of 695

5. 26/2012 - Abatement notification .......................................................... 229
27/2012 - Exemption for foreign diplomatic mission ................................ 236
29/2012 - Exemption on property tax paid ............................................. 239
30/2012 - Reverse charge mechanism ................................................... 241
31/2012 - Exemption to gta services for exporter.................................... 246
32/2012 - Exemption of services provided by tbi and ............................... 253
33/2012 - Exemption to small service providers ...................................... 256
34/2012 - Rescinding of earlier 81 notifications ....................................... 259
35/2012 - Earlier works contract composition scheme rescinded ............... 263
28/2011 - Notified continuous supply of services ..................................... 264
39/2012 - Rebate on inputs and input services ....................................... 265
40/2012 - Exemption on services provided to sez authorised operations .... 272
41/2012 - Rebate for service tax paid — new scheme .............................. 286
42/2012 - Exemption to service of commission agent .............................. 313
27/2012(ce) – Cenvat credit refund (rule 5) ........................................... 320
43/2012 - Exemption to railways........................................................... 324
45/2012 - Reverse charge mechanism for directors and security services ... 325
46/2012 – STR amended for reverse charge mechanism .......................... 326
47/2012 – Return due date .................................................................. 327
48/2012 - Amends ST-1 and Accounting codes re-notified ........................ 328
49/2012 - Exemption to Janashri and Aam Aadmi Bima Yojana ................. 339
1/2013 - Amendment in Service Tax Rules, 1994 .................................... 340
2/2013 - Construction of Complex – Taxable value 25% or 30% ............... 359
3/2013 - Mega Exemption Amended ...................................................... 360
4/2013 - Advance Ruling (Applicable for Public Company) ........................ 362
5/2013 - New ST-5, ST-6 and ST-7 notified ............................................ 363
6/2013 - Focus Market Scheme ............................................................. 373
7/2013 - Focus Product Scheme ............................................................ 377
8/2013 - Vishes Krishi and Gram Udyog Yojana ...................................... 380
9/2013 - Construction service – Change in abatement ............................. 382
10/2013 - Service Tax VCES Rules notified ............................................. 383
11/2013 - Amends Not. No. 6/2013-ST .................................................. 384
12/2013 - Special Economic Zone (SEZ) Developer / Unit ........................ 386
13/2013 – Amendment to Not. 25/2012 ................................................. 395
1/1/2013 - Ad-Hoc Exemption .............................................................. 396
12/2013 (CE) – Amendment in 3 (5A) of CCR ......................................... 397
Page 5 of 695

6. 14/2013 – Catering in canteen .............................................................. 398
15/ 2013- Amendment in SEZ Not. ........................................................ 399
16 /2013- E-payment (1 lac) ................................................................ 400
17/2013-Amendment to FMS Not. ......................................................... 401
01/2014 – Amendment in Mega Not. ..................................................... 402
01/2014-CE (NT) – CENVAT Credit amendment ...................................... 403
14. CIRCULARS .................................................................................... 404
160/11/2012 - Applicability Of EC and SHEC.......................................... 404
161/12/2012 – Accounting code for Negative List .................................... 406
162/13/2012 - Clarification on POTR...................................................... 408
163/14/2012 - Clarification on remittances............................................. 411
164/15/2012 – Clarification on vocational education ................................ 413
165/16/2012 - Circular on restoration of accounting codes ....................... 415
166/1/2013 – Reminder letters for insurance policies .............................. 427
167/2/2013 - Milk transportation by rail ................................................. 428
969/03/2013-CX – CESTAT Appeal forms ............................................... 429
168/3/2013 - Clarification on Pandal and Shamiyana ............................... 433
169/4/2013 - Clarification on VCES ....................................................... 435
170/5 /2013 - Clarification on VCES ...................................................... 437
171/6/2013 - Circular on Arrest and Bail ................................................ 442
172/7/2013 – Education services – Clarification ...................................... 446
173/8/2013 – Restaurant clarifications .................................................. 449
174/9/2013 – VCES clarifications .......................................................... 451
175/01/2014 ST – RWA Clarification ...................................................... 454
974/08/2013-CX - Arrest and Bail ......................................................... 456
15. P O T R C I R C U L A R S ..................................................................... 462
341/34/2010-TRU - POTR Clarifications .................................................. 462
154/5/2012-ST – POTR clarification ....................................................... 466
155/6/2012-ST – POTR Clarifications ..................................................... 467
158/9/2012-ST – Change in Rate .......................................................... 468
162/13/2012-ST – POTR Clarifications ................................................... 469
16.
D R A F T C I R C U L A R ................................................................ 471
D r a f t c i r c u l a r o n s t a f f b e n e f i t s ................................................... 471
Draft circular on service tax on air transport ........................................... 477
17. INSTRUCTIONS/ ORDERS ............................................................. 480
Instructions – Negative list of service tax regime .................................... 480
Page 6 of 695

7. Filing of ST-3 ...................................................................................... 483
Order 3/2012 - Due date for filing of service tax return ............................ 485
Service Tax Instruction ........................................................................ 486
Order 2/2013 - ST-3 [30 April 2013] ..................................................... 488
Order 3/2013 - ST-3 [31 August 2013] .................................................. 489
Order 4/2013 - ST-3 [10 September 2013] ............................................ 490
F.No: 137/116/2012- E-payment 1 lacs ................................................. 491
F. No. B1/19/2013-TRU (Pt.) - VCES...................................................... 493
F. No. 137/50/2013-VCES .................................................................. 495
18. Budget 2013 ................................................................................. 496
Union FM –Budget Speech (Extracts) ..................................................... 496
TRU – Budget 2013 – Service Tax ......................................................... 500
Article – Budget 2013 – Changes in Service Tax ...................................... 503
Supply of food in restaurant, ‗sale‘ or ‗service‘? ....................................... 508
ST on Foreign Bank Charges ................................................................. 511
CEVAT Credit of ST paid under VCES ..................................................... 515
Applicability of VAT on flat .................................................................... 519
19. FAQ on VCES – CBEC ...................................................................... 523
20. Education Guide – CBEC ................................................................. 535
Page 7 of 695

8. 1. ABOUT THE BOOK
FOREWORDS
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
Page 8 of 695

9. 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 (Director – Head Indirect Tax, SKP
Crossborder Consulting Pvt Ltd) 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 Taxindiaonline.com, Economic
Times, Taxmann, Centax, Lexsite etc
-
For suggestions/ feedback/ queries readers may feel free to
revert at capritam@gmail.com/ +919920644648
Page 9 of 695

10. 2. NEGATIVE LIST – IN A NUTSHELL
A. In a nutshell
1. Negative List
2. Positive List
Service is taxable unless
exempt
Service is exempt unless
taxable
Applicable wef 1 July 2012
Applicable upto 30 June 2012
B. Negative vis-à-vis Positive list regime – A Comparative Analysis
Current provisions
Coverage
Earlier provisions
(Negative List)
(Positive List)
65B
Definitions
65
66B
Charging Section
66 and 66A
66C
Determination of Place of
Export and Import Rules
Provision of services
66D
Negative List
Service specific
exclusions/ exemptions
66E
Declared services
65 (105)
66F
Interpretation Rules and
65A (covers classification
Bundled services
only)
Valuation
67 and Valuation Rules
Date of determination tax rate,
POTR
67 and Valuation Rules
(Amended)
67A and POTR
value and exchange Rate
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
Page 10 of 695

11. 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 October 2013 to
March 2014 returns to be filed before
25 April 2014
E. Abatement (Refer Not. No. 26/2012 and Valuation Rules)
SR
1
Service
Taxable
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)
Condition
25%
- No cenvat credit availed
Provided that when such person is
located in a non-taxable territory,
the provider of such service shall
be liable to pay service tax.
2
Transport of goods by rail
30%
- Nil
3
Transport of passengers by rail
30%
- Nil
4
Transport of goods in a vessel from
one port in India to another
50%
- No cenvat credit availed
5
Transport of passengers by air
40%
- Cenvat credit on inputs
and CG is not availed
6
Supply of food or any other article
of human consumption or any
drink, in a restaurant / other
premises
Supply of food in convention
centre, pandal, shamiana etc
40%/
60%
- Cenvat credit of goods in
Ch. 1 to 22 not taken.
Further, Rule 6 reversal
required.
- As above
8
Accommodation in hotels, inns etc
60%
- Cenvat credit on inputs
and CG is not availed
9
Renting of any motor vehicle
designed to carry passengers
40%
- No cenvat credit availed
10
Package tour
25%
11
Booking accommodation
10%
12
Services other than 11 and 12
provided in relation to tour
40%
- As above
- Bill incl. of charges for
tour
- No cenvat credit availed
- Bill indicates so
- NA if invoice only for
service charges
- No cenvat credit availed
- Invoice is for gross
7
70%
Page 11 of 695

12. amount
13
Financial leasing services including
hire purchase
10%
- Nil
14
Services in relation to chit1
70%
- No cenvat credit availed
15
2
Construction 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,-
- (i) CENVAT credit on
inputs used for providing
the taxable service has
not been taken under the
provisions of the CENVAT
Credit Rules, 2004;
- (ii) The value of land is
included in the amount
charged from the service
receiver.‖.
(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
25%
(ii) the amount charged for the unit
is less than rupees one crore;
(b) for other than the (a) above
30%
3
Construction 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,(i)
for residential unit having
carpet area upto 2000 square
feet or where the amount
charged is less than rupees
one crore
(ii)(i) For other than (i) above
16
Works contracts entered into for
execution of original works
25%
30%
40%
- Cenvat credit on inputs
not availed
1
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 money…The 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
2
Not. No. 9/2013-ST dated 8 May 2013
Applicable wef 1 March 2013 [refer Not. No. 2/2013-ST]
3
Page 12 of 695

13. 17
18
Works contracts entered into for
maintenance or repair or
reconditioning or restoration or
servicing of any goods
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,
70%
- Cenvat credit on inputs
not availed
60%
- Cenvat credit on inputs
not availed
F. Reverse Charge Mechanism (Refer Not. No. 30/2012-ST)
SR
Service
1
Provided by person who is
located in non-taxable territory
and received by any person
located in taxable territory
Works contract services by
individual, HUF, firm or AOP
Any person4
3
4
2
4
Service recipient
% of ST payable
Provider
Nil
Recipient
100%
Body corporate
50%
50%
Manpower supply for any
purposes or security services
by individual, HUF, firm or AOP
Body corporate
25%
75%
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
60%
100%
40%
Exemption provided to certain persons vide Sr. No. 34 of Not. No. 25/2012-ST
Page 13 of 695

14. 5
Support services5 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)
Company
Nil
100%
7
Individual advocate
Business entity6
Nil
100%
8
Arbitral Tribunal
Business entity7
Nil
100%
9
Sponsorship
Body corporate or PF
Nil
100%
10
GTA
Nil
100%
11
Insurance agent to insurance
companies
Company, P. Firm,
Factory, Society,
excise registered
assessee
Insurance business
Nil
100%
G. Brief Note on Negative List regime8
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
5
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-General‗s (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.
6
Exemption provided to certain persons vide Sr. No. 6 of Not. No. 25/2012-ST
7
Exemption provided to certain persons vide Sr. No. 6 of Not. No. 25/2012-ST
8
Relevant paras from TRU DOF No 334/1/2012-TRU dated 16 March 2012
Page 14 of 695

15. 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.
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
Page 15 of 695

16. - 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.
- 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 –
Page 16 of 695

17. - 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.
Page 17 of 695

18. 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
Excise Duty
Service Tax
Central Sales Tax,
Research & Dev. Cess
VAT/Sales Tax
Entry Tax, Purchase
Tax, Entertainment
tax, Elect. duty
Local Taxes
Customs duty
State Government
Central Goverrnment
The following diagram captures the aforesaid:
Octroi / Local Body
Tax
Key features of specified indirect taxes:
SR
1
Indirect Tax
Customs duty
Key features
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:
Page 18 of 695

19. 2
Excise duty
-
-
3
Service Tax
-
4
5
Research and
Development
Cess
-
VAT/ Sales Tax
-
-
6
CST
-
-
a. Basic Customs Duty (generic rate is 10%)
b. Additional Duty of Customs in lieu of excise9 (generic rate is
12%)
c. Additional Duty of Customs in lieu of VAT10 (generic rate is
4%)
d. Education cess11 @ 3%
Customs duty is levied and governed under the Customs Act,
1962 and the Rules made thereunder
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
Service tax is applicable on provision of all services
Service tax is not applicable on ‗Negative list12‘ services and
certain exempt services13
Service tax is payable by Service provider. However, in certain
case service recipient is also liable to pay service tax 14.
Rate of Service Tax is 12.36% (including Cess 3%). Further, for
certain services abatement is provided15
Service tax is levied and governed under the Finance Act, 1994
and the Rules made thereunder
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
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
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 doesn‘t 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
9
Also known as Counter-Veiling Duty/ CVD
Also known as Special Additional Duty of Customs / SACD
11
Education cess @ 2% plus Secondary and Higher Education cess @ 1%
12
Negative List of services comprises of 17 services and is specified under Section 66D
of Finance Act, 1994
13
Exemption is provided to 39 services vide Not. No. 25/2012-ST
14
Situations where service recipient is liable to pay ST (as recipient of service) is
specified in Not. No. 30/2012-ST
15
Abatement to various services is specified under Not. No. 26/2012-ST and Service Tax
(Determination of Value of Services) Rules, 2006
10
Page 19 of 695

20. 7
Entry Tax
-
8
Octroi / Local
Body Tax (LBT)
-
9
Purchase Tax
-
10
Entertainment
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
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.
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
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% 16
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 both17
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)
Transactions in an economy are subject to indirect taxes. We have given below
the typical indirect tax implications on the aforesaid transactions:
16
17
Source www.filmtvguildindia.org
Source www.en.wikipedia.org
Page 20 of 695

21. SR Activity
1
Trading – Sale to a customer
located in same State (IntraState sale)
2
Trading – Sale to a customer
located in different State
(inter-State sale)
3
Manufacturing and
subsequently intra-State sale
of goods
4
Manufacturing and
subsequently inter-State sale
of goods
5
Provision of services
6
Works contracts (i.e.
transaction involving both
goods and services)
7
Transaction of sale of an
completed20 immovable
property
8
Other transactions (such as
employment, donation etc)
Tax applicable
Value Added Tax18 (VAT) would be applicable
on the sale to the customer
Central Sales Tax (CST) would be applicable
on the customer sale to the customer
- Excise duty on manufacture of goods
- VAT on sale of goods
- Excise duty on manufacture of goods
- CST on sale of goods
Service Tax19
- VAT on ‗goods‘ portion in works contract
- Service Tax on ‗service‘ portion in the
works contract
Stamp duty
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.
18
19
20
Also known as Sales tax
However, certain specified services such as entertainment, advertisement etc may be
liable to State VAT
W.e.f. 1 July 2010, Service tax has been made applicable on sale of property before
completion certificate is received for the same.
Page 21 of 695

22. 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. Interpretations21.
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 training;
(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 market;
21
Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
Page 22 of 695

23. (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;
(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 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 or State Council for Vocational Training22, 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;23
(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.);
22
23
Applicable from the date of Presidential Assent i.e. 10 May 2013
Applicable from the date of Presidential Assent i.e. 10 May 2013
Page 23 of 695

24. (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;
(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;
Page 24 of 695

25. (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 securities, 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;
(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 called;
(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
Page 25 of 695

26. 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;
(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;
(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;
Page 26 of 695

27. (35) "non-taxable territory" means the territory which is outside the taxable
territory;
(36) "notification" means notification published in the Official Gazette and the
expressions "notify'' and "notified" shall be construed accordingly;
(37) "person" includes,(i) an individual,
(ii) a Hindu undivided family,
(iii) a company,
(iv) a society,
(v) a limited liability partnership,
(vi) a firm,
(vii) an association of persons or body of individuals, whether incorporated
or not,
(viii) Government,
(ix) a local authority, or
(x) every artificial juridical person, not falling within any of the preceding
sub-clauses;
(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;
(40) "process amounting to manufacture or production of goods" 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,195524 or any process amounting to
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
24
Applicable from the date of Presidential Assent i.e. 10 May 2013
Page 27 of 695

28. 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 claim25;
(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.
25
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 tick ets 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
privity of contract between the State Government and the stockists, agents,
resellers under the Petitioner‖
Page 28 of 695

29. 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 persons;
(b) an establishment of a person in the taxable territory and any of his other
establishment in a non-taxable territory shall be treated as establishments of
distinct persons.
Explanation 3.- A person carrying on a business through a branch or agency or
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.);
Page 29 of 695

30. (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;
(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.'
Page 30 of 695

31. 66B. Charge of service tax on and after Finance Act, 201226. 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.
27
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.
28
66BA.
(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 service29.
(1) The Central Government may, having regard to the nature and description of
various services, 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.
66D. Negative list of services30. 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
Government31;
26
27
28
29
30
31
Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
Omitted from the date of Presidential Assent i.e. 10 May 2013
Applicable from the date of Presidential Assent i.e. 10 May 2013
Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
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
Page 31 of 695

32. (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 India32;
(c) services by a foreign diplomatic mission located in India33;
(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
34
testing;
(ii) supply of farm labour;
(iii) processes carried out at an agricultural farm including tending,
pruning, cutting, harvesting, drying, cleaning, trimming, sun drying,
fumigating, curing, sorting, grading, cooling or bulk packaging and such
like operations which do not alter the essential characteristics of
agricultural produce but make it only marketable for the primary
market35;
(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;
(vi) agricultural extension services36;
(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 goods37;
(f) any process amounting to manufacture or production of goods38;
32
33
34
35
36
37
38
Services provided BY RBI are exempt (and not TO RBI)
This exemption seems to be given in view of Vienna Convention (which provides for
grants immunity from local laws to the missions)
Omitted from the date of Presidential Assent i.e. 10 May 2013
Such as shelling of paddy or cleaning of wheat
As per Section 65B (4) "agricultural extension" means application of scientific
research and knowledge to agricultural practices through farmer education or training
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‖
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
Page 32 of 695

33. (g) selling of space or time slots for advertisements other than advertisements
broadcast by radio or television39;
(h) service by way of access to a road or a bridge on payment of toll charges40;
(i) betting, gambling or lottery41;
(j) admission to entertainment events or access to amusement facilities42;
(k) transmission or distribution of electricity by an electricity transmission or
distribution utility43;
(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 law44 for the time being in force;
(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 passengers45, with or without accompanied
belongings, by—
39
40
41
42
43
44
45
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.
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‖
Refer Entry No. 59 to List II (State List) in Seventh Schedule to Constitution of India
which reads as ―Tolls‖
Refer Entry No. 34 to List II (State List) in Seventh Schedule to Constitution of India
which reads as ―Betting and gambling‖
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‖
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‖
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-430HC-DEL-ST]
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
Page 33 of 695

34. (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 taxis or auto rickshaws;
(p) services by way of transportation of goods46—
(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.
66E Declared Services47. The following shall constitute declared services,
namely:––
(a) renting of immovable property48;
(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 completioncertificate by the competent authority.
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
46
47
48
waterways‖
Ibid
Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
Refer Entry No. 49 to List II (State List) in Seventh Schedule to Constitution of India
which reads as ―Taxes on lands and buildings‖. Whether collection of Service Tax on
‗Renting of immovable property‘ amounts to ―Taxes on lands and buildings‖ or is it on
‗income‘ arising out of land and building has been long a subject matter of contention
– Refer Tamil Nadu Kalyana Mandapam Assn. v. Union of India — 2006 (3) STR 260
(SC) and Home Solutions Retail (India) Ltd 2011 (24) STR 129 (Del)
Page 34 of 695

35. 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 right49;
(d) development, design, programming, customisation, adaptation, upgradation,
enhancement, implementation of information technology software50;
(e) agreeing to the obligation to refrain from an act, or to tolerate an act or a
situation, or to do an act;
(f) transfer of goods by way of hiring, leasing, licensing or in any such manner
without transfer of right to use such goods;
(g) activities in relation to delivery of goods on hire purchase or any system of
payment by installments;
(h) service portion in the execution of a works contract;
(i) service portion in an activity wherein goods, being food or any other article
of human consumption or any drink (whether or not intoxicating) is supplied
in any manner as a part of the activity.
66F Principles of interpretation of specified descriptions of services or
bundled services 51. (1) Unless otherwise specified, reference to a service
49
50
IPR in normal trade parlance means copyright, patents, trademarks, designs, any
other similar right to an intangible property. Also, there is no condition regarding the
law under which an intellectual right should be registered. Further, permanent
transfers do not come under the purview of this entry [Thermax Ltd 201-TIOL1092CESTAT-MUM].
It is a settled position of law that pre-packaged or canned software which is put on a
media is in the nature of goods [Supreme Court judgment in case of Tata Consultancy
Services vs State of Andhra Pradesh [2002(178) ELT22(SC) refers]. Sale of prepackaged or canned software is, therefore, in the nature of sale of goods and is not
covered in this entry. License to use software which does not involve the transfer of
‗right to use‗ would neither be a transfer of title in goods nor a deemed sale of goods.
Such an activity would fall in the ambit of definition of ‗service‗ and also in the
declared service category specified in clause (f) of section 66E [Refer Para 6.4.4 of
Education Guide for details]
Page 35 of 695

36. (herein referred to as main service) shall not include reference to a service
which is used for providing main service52.
(2) Where a service is capable of differential treatment for any purpose based on
its description, the most specific description shall be preferred over a more
general description53.
(3) Subject to the provisions of sub-section (2), the taxability of a bundled
service shall be determined in the following manner, namely:––
(a) if various elements of such service are naturally bundled in the ordinary
course of business, it shall be treated as provision of the single service
which gives such bundle its essential character54;
(b) if various elements of such service are not naturally bundled in the
ordinary course of business, it shall be treated as provision of the single
service which results in highest liability of service tax55.
Explanation.— For the purposes of sub-section (3), the expression "bundled
service" means a bundle of provision of various services wherein an element of
provision of one service is combined with an element or elements of provision of
any other service or services.‘;
51
52
Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
Provision of access to any road or bridge on payment of toll‗ is a specified entry in the
negative list in section 66D of the Act. Any service provided in relation to collection of
tolls or for security of a toll road would be in the nature of service used for providing
such specified service and will not be entitled to the benefit of the negative list entry.
[Refer Para 9. 1.1 of Education Guide for details]
53
The services provided by a real estate agent are in the nature of intermediary services
relating to immovable property. As per the Place of Provision of Service Rule, 2012,
the place of provision of services provided in relation to immovable property is the
location of the immovable property. However in terms of the rule 5 pertaining to
services provided by an intermediary the place of provision of service is where the
intermediary is located. Since Rule 5 provides a specific description of ‗estate agent‗,
the same shall prevail [Refer Para 9. 1.2 of Education Guide for details]
54
Eg. A hotel provides a 4-D/3-N package with the facility of breakfast. This is a natural
bundling of services in the ordinary course of business. The service of hotel
accommodation gives the bundle the essential character and would, therefore, be
treated as service of providing hotel accommodation [Refer Para 9.2.1 of Education
Guide for details]
55
Eg. A house is given on rent one floor of which is to be used as residence and the
other for housing a printing press. Such renting for two different purposes is not
naturally bundled in the ordinary course of business. Therefore, if a single rent deed is
executed it will be treated as a service comprising entirely of such service which
attracts highest liability of service tax. In this case renting for use as residence is a
negative list service while renting for non-residence use is chargeable to tax. Since
the latter category attracts highest liability of service tax amongst the two services
bundled together, the entire bundle would be treated as renting of commercial
property [Refer Para 9.2.2 of Education Guide for details]
Page 36 of 695

37. SECTION 67. Valuation of taxable services for charging service tax. —
(1) Subject to the provisions of this Chapter, where service tax is chargeable on
any taxable service with reference to its value, then such value shall, —
(i) in a case where the provision of service is for a consideration in
money, be the gross amount charged by the service provider for such
service provided or to be provided by him;
(ii) in a case where the provision of service is for a consideration not
wholly or partly consisting of money, be such amount in money as,
with the addition of service tax charged, is equivalent to the
consideration;
(iii) in a case where the provision of service is for a consideration which is
not ascertainable, be the amount as may be determined in the
prescribed manner.
(2) Where the gross amount charged by a service provider, for the service
provided or to be provided is inclusive of service tax payable, the value of
such taxable service shall be such amount as, with the addition of tax
payable, is equal to the gross amount charged.
(3) The gross amount charged for the taxable service shall include any amount
received towards the taxable service before, during or after provision of such
service.
(4) Subject to the provisions of sub-sections (1), (2) and (3), the value shall be
determined in such manner as may be prescribed.
Explanation. — For the purposes of this section, —
(a) ―consideration‖ includes any amount that is payable for the taxable
services provided or to be provided56;
57
(b)…
(c) ―gross amount charged‖ includes payment by cheque, credit card,
deduction from account and any form of payment by issue of credit
notes or debit notes and book adjustment, and any amount credited or
debited, as the case may be, to any account, whether called ―Suspense
56
Notional interest on security deposit taken for premises rented out on lease basis No evidence led by revenue to show that such security deposit has influenced the rent
received and it is only a presumption - Prima facie appellant has made a case in
favour - 2013-TIOL-1068-CESTAT-MUM
57
Omitted wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
Page 37 of 695

38. account‖ or by any other name, in the books of account of a person
liable to pay service tax, where the transaction of taxable service is
with any associated enterprise.
67A. Date of determination of rate of tax, value of taxable service and
rate of exchange 58. The rate of service tax, value of a taxable service and
rate of exchange, if any, shall be the rate of service tax or value of a taxable
service or rate of exchange, as the case may be, in force or as applicable at
the time when the taxable service has been provided or agreed to be
provided.
Explanation.— For the purposes of this section, "rate of exchange" means the
rate of exchange referred to in the Explanation to section 14 of the Customs Act,
1962 (52 of 1962.).
SECTION 68. Payment of service tax. — (1) Every person providing taxable
service to any person shall pay service tax at the rate specified in section
66B59 in such manner and within such period as may be prescribed.
(2)
Notwithstanding anything contained in sub-section (1), in respect of such
taxable services as may be notified60 by the Central Government in the
Official Gazette, the service tax thereon shall be paid by such person and in
such manner as may be prescribed at the rate specified in section 66B61 and
all the provisions of this Chapter shall apply to such person as if he is the
person liable for paying the service tax in relation to such service.
Provided that the Central Government may notify the service and the extent of
service tax which shall be payable by such person and the provisions of this
Chapter shall apply to such person to the extent so specified and the remaining
part of the service tax shall be paid by the service provider62.
SECTION 69. Registration. —
(1) Every person liable to pay the service tax under this Chapter or the rules
58
59
60
61
62
With effect from 28 May 2012 ie date of Presidential assent
Substituted vide Service Tax (Removal of Difficulty) Order, 2012
Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
Substituted vide Service Tax (Removal of Difficulty) Order, 2012
Applicable wef 1 July 2012 vide Not. No. 19/2012-ST dated 5 June 2012
Page 38 of 695

39. made thereunder shall, within such time and in such manner and in such
form as may be prescribed, make an application for registration to the
Superintendent of Central Excise
(2) The Central Government may, by notification in the Official Gazette, specify
such other person or class of persons, who shall make an application for
registration within such time and in such manner and in such form as may
be prescribed.
SECTION 70. Furnishing of returns. —
(1) Every person liable to pay the service tax shall himself assess the tax due on
the services provided by him and shall furnish to the Superintendent of
Central Excise, a return in such form and in such manner and at such
frequency and with such late fee not exceeding twenty thousand rupees, for
delayed furnishing of return, as may be prescribed.
(2) The person or class of persons notified under sub-section (2) of section 69,
shall furnish to the Superintendent of Central Excise, a return in such form
and in such manner and at such frequency as may be prescribed.
SECTION 71.
Scheme for submission of Returns through Service Tax
Preparers. — (1) Without prejudice to the provisions of section 70, the Board
may, by notification in the Official Gazette, frame a Scheme for the purposes of
enabling any person or class of persons to prepare and furnish a return under
section 70, and authorise a Service Tax Return Preparer to act as such under the
Scheme.
(2) A Service Tax Return Preparer shall assist the person or class of persons to
prepare and furnish the return in such manner as may be specified in the
Scheme framed under this section.
(3) For the purposes of this section, —
(a) ―Service Tax Return Preparer‖ means any individual, who has been
authorised to act as a Service Tax Return Preparer under the Scheme
framed under this section;
(b) ―person or class of persons‖ means such person, as may be specified in
the Scheme, who is required to furnish a return required to be filed
under section 70.
(4) The Scheme framed by the Board under this section may provide for the
following, namely :—
Page 39 of 695

40. (a) the manner in which and the period for which the Service Tax Return
Preparer shall be authorised under sub-section (1);
(b) the educational and other qualifications to be possessed, and the
training and other conditions required to be fulfilled, by a person to act
as a Service Tax Return Preparer;
(c) the code of conduct for the Service Tax Return Preparer;
(d) the duties and obligations of the Service Tax Return Preparer;
(e) the circumstances under which the authorisation given to a Service Tax
Return Preparer may be withdrawn;
(f) any other matter which is required to be, or may be, specified by the
Scheme for the purposes of this section.
SECTION 72. Best judgment assessment. — If any person, liable to pay
service tax, —
(a) fails to furnish the return under section 70;
(b) having made a return, fails to assess the tax in accordance with the
provisions of this Chapter or rules made thereunder,
the Central Excise Officer, may require the person to produce such accounts,
documents or other evidence as he may deem necessary and after taking into
account all the relevant material which is available or which he has gathered,
shall by an order in writing, after giving the person an opportunity of being
heard, make the assessment of the value of taxable service to the best of his
judgment and determine the sum payable by the assessee or refundable to the
assessee on the basis of such assessment.
72A Special audit63.
(1) If the Commissioner of Central Excise, has reasons to believe that any
person liable to pay service tax (herein referred to as ''such person''),
(i) has failed to declare or determine the value of a taxable service correctly;
or
(ii) has availed and utilised credit of duty or tax paid(a) which is not within the normal limits having regard to the nature of
taxable service provided, the extent of capital goods used or the type
of inputs or input services used, or any other relevant factors as he
may deem appropriate; or
63
With effect from 28 May 2012
Page 40 of 695

41. (b) by means of fraud, collusion, or any wilful misstatement or
suppression of facts; or
(iii) has operations spread out in multiple locations and it is not possible or
practicable to obtain a true and complete picture of his accounts from the
registered
premises
falling
under
the
jurisdiction
of
the
said
Commissioner, he may direct such person to get his accounts audited by a
chartered accountant or cost accountant nominated by him, to the extent
and for the period as may be specified by the Commissioner.
(2) The chartered accountant or cost accountant referred to in sub-section (1)
shall, within the period specified by the said Commissioner, submit a report
duly signed and certified by him to the said Commissioner mentioning therein
such other particulars as may be specified by him.
(3) The provisions of sub-section (1) shall have effect notwithstanding that the
accounts of such person have been audited under any other law for the time
being in force.
(4) The person liable to pay tax shall be given an opportunity of being heard in
respect of any material gathered on the basis of the audit under sub-section
(1) and proposed to be utilised in any proceeding under the provisions of this
Chapter or rules made thereunder.
Explanation.— For the purposes of this section,––
(i) "chartered accountant" shall have the meaning assigned to it in clause (b) of
sub-section (1) of section 2 of the Chartered Accountants Act, 1949(38 of
1949.);
(ii) "cost accountant" shall have the meaning assigned to it in clause (b) of subsection (1) of section 2 of the Cost and Works Accountants Act, 1959(23 of
1959.).'
SECTION 73.
Recovery of service tax not levied or paid or short-levied
or short-paid or erroneously refunded. — (1) Where any service tax has not
been levied or paid or has been short-levied or short-paid or erroneously
refunded, Central Excise Officer may, within eighteen months 64 from the
relevant date, serve notice on the person chargeable with the service tax which
64
With effect from 28 May 2012
Page 41 of 695

42. has not been levied or paid or which has been short-levied or short-paid or the
person to whom such tax refund has erroneously been made, requiring him to
show cause why he should not pay the amount specified in the notice :
65
Provided that where any service tax has not been levied or paid or has been
short-levied or short-paid or erroneously refunded by reason of —
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or of the rules
made thereunder with intent to evade payment of service tax,
by the person chargeable with the service tax or his agent, the provisions of this
sub-section shall have effect, as if, for the words ―eighteen months 66 ‖, the
words ―five years‖ had been substituted.
Explanation. — Where the service of the notice is stayed by an order of a court,
the period of such stay shall be excluded in computing the aforesaid period of
eighteen months67 or five years, as the case may be.
(1A)68 Notwithstanding anything contained in sub-section (1) (except the period
of eighteen months of serving the notice for recovery of service tax), the
Central Excise Officer may serve, subsequent to any notice or notices
served under that sub-section, a statement, containing the details of
service tax not levied or paid or short levied or short paid or erroneously
refunded for the subsequent period, on the person chargeable to service
tax, then, service of such statement shall be deemed to be service of
notice on such person, subject to the condition that the grounds relied
upon for the subsequent period are same as are mentioned in the earlier
notices.
65
Once the Commissioner (Appeals) has come to a finding that for the relevant period,
there was genuine cause for confusion regarding the correct legal position and also
scope for doubt about the service tax liability on GTA as the 'Commercial concern' for
non-imposition of penalty then the same cause is also to be factored in to conclude
that extended period of limitation cannot be invoked - The Saswad Mali Sugar Factory
Ltd 2013-TIOL-898-HC-MUM-ST
66
With effect from 28 May 2012
With effect from 28 May 2012
With effect from 28 May 2012
67
68
Page 42 of 695

43. (1A)
*
*
*
*
(2) The Central Excise Officer shall, after considering the representation, if any,
made by the person on whom notice is served under sub-section (1),
determine the amount of service tax due from, or erroneously refunded to,
such person (not being in excess of the amount specified in the notice) and
thereupon such person shall pay the amount so determined :
*
*
*
*
*
69
(2A) Where any appellate authority or tribunal or court concludes that the notice issued under the
proviso to sub-section (1) is not sustainable for the reason that the charge of,—
(a) fraud; or
(b) collusion; or
(c) wilful misstatement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or the rules made thereunder with
intent to evade payment of service tax,
has not been established against the person chargeable with the service tax, to whom the
notice was issued, the Central Excise Officer shall determine the service tax payable by such
person for the period of eighteen months, as if the notice was issued for the offences for
which limitation of eighteen months applies under sub-section (1)
(3) 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, chargeable or erroneously refunded, on
the basis of his own ascertainment thereof, or on the basis of tax ascertained
by a Central Excise Officer before service of notice on him under sub-section (1)
in respect of such service tax, and inform the Central Excise Officer of such
payment in writing, who, on receipt of such information shall not serve any
notice under sub-section (1) in respect of the amount so paid :
Provided that the Central Excise Officer may determine the amount of shortpayment of service tax or erroneously refunded service tax, if any, which in his
opinion has not been paid by such person and, then, the Central Excise Officer
shall proceed to recover such amount in the manner specified in this section,
69
Applicable from the date of Presidential Assent i.e. 10 May 2013
Page 43 of 695

44. and the period of ―eighteen months 70 ‖ referred to in sub-section (1) shall be
counted from the date of receipt of such information of payment.
Explanation.1 — For the removal of doubts, it is hereby declared that the
interest under section 75 shall be payable on the amount paid by the person
under this sub-section and also on the amount of short payment of service tax
or erroneously refunded service tax, if any, as may be determined by the Central
Excise Officer, but for this sub-section.
Explanation 2. — For the removal of doubts, it is hereby declared that no
penalty under any of the provisions of this Act or the rules made thereunder
shall be imposed in respect of payment of service tax under this sub-section and
interest thereon.
(4) Nothing contained in sub-section (3) shall apply to a case where any service
tax has not been levied or paid or has been short-levied or short-paid or
erroneously refunded by reason of —
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or of the
rules made thereunder with intent to evade payment of service
tax.
(4A) Notwithstanding anything contained in sub-sections (4), where during the
course of any audit, investigation or verification, it is found that any
service tax has not been levied or paid or has been short-levied or shortpaid or erroneously refunded, but the true and complete details of
transactions
are
available in the specified records, the person
chargeable to service tax or to whom erroneous refund has been made,
may pay the service tax in full or in part, as he may accept to be the
amount of tax chargeable or erroneously refunded along with interest
payable thereon under section 75 and penalty equal to one per cent. of
70
With effect from 28 May 2012
Page 44 of 695

45. such tax, for each month, for the period during which the default
continues, up to a maximum of twenty-five per cent. of the tax
amount, before service of notice on him and inform the Central Excise
Officer of such payment in writing, who, on receipt of such information,
shall not serve any notice under sub-section (1) in respect of the amount
so paid and proceedings in respect of the said amount of service tax shall
be deemed to have been concluded :
Provided that the Central Excise Officer may determine the amount of service
tax, if any, due from such person, which in his opinion remains to be paid by
such person and shall proceed to recover such amount in the manner specified
in sub-section (1).
Explanation. — For the purposes of this sub-section and section 78, ―specified
records‖ means records including computerised data as are required to be
maintained by an assessee in accordance with any law for the time being in
force or where there is no such requirement, the invoices recorded by the
assessee in the books of account shall be considered as the specified records.
(5) The provisions of sub-section (3) shall not apply to any case where the
service tax had become payable or ought to have been paid before the 14th
day of May, 2003.
(6) For the purposes of this section, ―relevant date‖ means, —
(i) in the case of taxable service in respect of which service tax has not
been levied or paid or has been short-levied or short-paid —
(a) where under the rules made under this Chapter, a periodical
return, showing particulars of service tax paid during the period to
which the said return relates, is to be filed by an assessee, the
date on which such return is so filed;
(b) where no periodical return as aforesaid is filed, the last date on
which such return is to be filed under the said rules;
(c) in any other case, the date on which the service tax is to be paid
under this Chapter or the rules made thereunder;
(ii) in a case where the service tax is provisionally assessed under this
Page 45 of 695

46. Chapter or the rules made thereunder, the date of adjustment of the
service tax after the final assessment thereof;
(iii) in a case where any sum, relating to service tax, has erroneously been
refunded, the date of such refund.
SECTION 73A.
Service tax collected from any person to be deposited
with Central Government. —
(1) Any person who is liable to pay service tax under the provisions of this
Chapter or the rules made thereunder, and has collected any amount in
excess of the service tax assessed or determined and paid on any taxable
service under the provisions of this Chapter or the rules made thereunder
from the recipient of taxable service in any manner as representing service
tax, shall forthwith pay the amount so collected to the credit of the Central
Government.
(2)
Where any person who has collected any amount, which is not required to
be collected, from any other person, in any manner as representing service
tax, such person shall forthwith pay the amount so collected to the credit of
the Central Government.
(3)
Where any amount is required to be paid to the credit of the Central
Government under sub-section (1) or sub-section (2) and the same has not
been so paid, the Central Excise Officer shall serve, on the person liable to
pay such amount, a notice requiring him to show cause why the said
amount, as specified in the notice, should not be paid by him to the credit of
the Central Government.
(4)
The Central Excise Officer shall, after considering the representation, if any,
made by the person on whom the notice is served under sub-section (3),
determine the amount due from such person, not being in excess of the
amount specified in the notice, and thereupon such person shall pay the
amount so determined.
(5)
The amount paid to the credit of the Central Government under sub-section
(1) or sub-section (2) or sub-section (4), shall be adjusted against the
service tax payable by the person on finalisation of assessment or any other
proceeding for determination of service tax relating to the taxable service
referred to in sub-section (1).
(6)
Where any surplus amount is left after the adjustment under sub-section
(5), such amount shall either be credited to the Consumer Welfare Fund
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