Indian Service Tax
Service Tax - Statutory Provisions Chapters V and VA of the Finance Act, 1994
CHAPTER V
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.
1[65. Definitions: In this Chapter, unless the context otherwise requires:
(1) "actuary" has the meaning assigned to it in clause (1) of Section 2 of the Insurance Act, 1938 (4 of 1938),
(2) "advertisement" includes any notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by means of light, sound, smoke or gas,
(3) "advertising agency" means any commercial concern engaged in providing any service connected with the making, preparation, display or exhibition of advertisement and includes an advertising consultant,
2[(3a) "aircraft" has the meaning assigned to it in clause (1) of Section 2 of the Aircraft Act, 1934 (22 of 1934),
(3b) "aircraft operator" means any commercial concern which provides the service of transport of goods by aircraft,
(3c) "airport" has the meaning assigned to it in clause (b) of Section 2 of the Airports Authority of India Act, 1994 (55 of 1994),
(3d) "airports authority" means the Airports Authority of India constituted, under Section 3 of the Airports Authority of India Act, 1994 (55 of 1994) and also includes any person having the charge of management of an airport or a civil enclave],
(4) "air travel agent" means any person engaged in providing any service connected with the booking of passage for travel by air,
(5) "Appellate Tribunal" means the Customs, Excise and Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act, 1962 (52 of 1962),
1.
Subs. by Finance Act, 2003, w.e.f. 14/5/2003.
2.
Inserted by Finance (No.2) Act, 204, w.e.f. 10/9/2004.
(6) "architect" means any person whose name1s, for the time being, entered in the register of architects maintained under Section 41of the Architects Act, 1972 (20 of 1972) and also includes any. commercial concern engaged in any manner, whether directly or indirectly, in rendering services. in the field of architecture,
(7) "assessee" means a person liable to pay the service tax and includes his agent,
(8) "authorised dealer of foreign exchange” hasthe meaning assigned to " authorised person" in clause (c) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999), " .
(9) "authorised service station" means any service station or centre, authorised by any motor vehicle manufacturer, to carry out any service or repair of any motor car, light motor vehicle or two wheeled motor vehicle manufactured by such manufacturer,
(10) "banking" has the meaning assigned to it in clause (b) of Section 5 of the Being Regulation Act, 1949 (10 of 1949),
(11) "banking company" has the meaning assigned to it in clause (a) of Section 45A of the Reserve Bank of India Act, 1934 (2 0£'1934),
1[(12) "banking and other financial services" means
(a) the following services provided by a banking company or a financial institution including a non-banking financial company or any other.' body corporate or commercial concern, namely:--
(i) financial leasing services including equipment leasing and hire purchase,
(ii) credit card services,
(iii) merchant banking services,
(iv) securities and foreign exchange (forex) broking,
(v) asset management including portfolio management, all forms of fund management, pension fund management, custodial, depository and trust services, but does not include cash management,
(vi) advisory and other auxiliary financial services including investment and portfolio research and, advice on mergers and acquisitions and advice on corporate restructuring and strategy,
(vii) provision and transfer of information and data processing, and
(viii) other financial services, namely, lending, issue of pay order, demand draft, cheque, letter of credit and bill of exchange, providing bank guarantee, over draft facility, bill discounting facility, safe deposit locker, safe vaults, operation of bank accounts,
(b) foreign exchange braking provided by a foreign exchange broker other those covered. under sub-clause (a)],
1.
Subs. by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(13) "Board" means the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963),
(14) "body corporate" has the meaning assigned to it in clause (71) of Section 2 of the Companies Act, 1956 (1 of 1956),
(15) "broadcasting" has the meaning assigned to it in cl. (c) of S. 2 of the Prasar bharti (Broadcasting Corporation of India) Act, 1990 and also includes programme selection, scheduling or presentation of sound or visual matter on a radio or. a television channel that is intended for public listening or viewing, as the case may be, and in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes the activity of selling of time slots or obtaining sponsorships for broadcasting of any programme or collecting the broadcasting charges on behalf of the said agency or organisation, by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner,
(16) "broadcasting agency or organisation" means any agency or organisation engaged in providing service in relation to broadcasting in any manner and, in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes its branch office or subsidiary or representative in India or any agent appointed in India or any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for' broadcasting of any. programme or obtaining sponsorships for programme or collecting the broadcasting charges on behalf of the said agency or organisation,
(17) "beauty treatment" means face and beauty treatment, cosmetic treatment, manicure, pedicure or counselling services on beauty, face care or make-up,
(18) "beauty parlour" means any establishment providing beauty treatment services,
1[(19) "business auxiliary service" means any service in relation to -
(i) promotion or marketing or sale of goods produced or provided by or belonging to the client or
(ii) promotion or marketing of service provided by the client or
(iii) any customer care service provided on behalf of the client or
(iv) procurement of goods or services, which are inputs for the client or
(v) production of goods on behalf of the client or
(vi) provision of service on behalf of the client or
(vii) a service incidental or auxiliary to any activity specified in sub
clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, paymerits, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any information technology service and any activity that amounts to " manufacture" within the meaning of clause (t) of Section 2 of the Central Excise Act, 1944 (1 of 1944).'
1.
Subs. By Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this clause, " information technology service" means any service in relation to designing, developing or maintaining of computer software or computerised data processing or system networking or any other service primarily in relation to operation of computer systems,
(19a) "business exhibition" means an exhibition -
(a) to market or
(b) to promote or
(c) to advertise or
(d) to showcase,
any product or service, intended for the growth in business of the producer or provider of such product or service,. as the case may be],
(20) "cab" means a motorcab or maxi cab,
(21) "cable operator" has the meaning assigned to it in clause (aa) of Section 2 of the Cable Television Networks (Regulation) Act, 1995 (7 of 1995),
(22) "cable service" has the meaning assigned to it in clause (b) of Section 2 of the Cable Television Networks (Regulation) Act, 1995 (Z,, of 1995),
(23) Cargo handling service" means loading, unloading,,,' packing or unpacking of cargo- and includes cargo handling services provided for freight ill special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport. and cargo handling service incidentaltofreight, but does not include handling of export cargo or passenger baggage or mere transportation of goods,
(24) "caterer" means any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or occasion,
1[(24a) "Civil enclave" has the meaning assigned to it in clause (i) of Section 2 of the Airports Authority of India Act, 1994 (55 of 1994)], in (2).:'clearing and forwarding agent means: any person who is engaged in Providing any service, either directly or indirectly, connected with the
clearing and forwarding operations In any manner to any other person and includes a consignment agent.
1.
Inserted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(26) "commercial training or coaching" means any training or coaching provided by a commercial training or coaching centre,
(27) "commercial training or coaching centre" means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes but does not include preschool coaching and training,centre or any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognised by law for the time being in force,
(28)1[xxx]
(29) "commissioning and installation agency" means any agency providing service 2[in relation to erection, commissioning or installation],
(30) "computer network" has the meaning assigned to it in clause (j) of sub-section (1) of Section 2 of the Information Technology Act, 2000 (21 of 2000),
3[(30(a) "construction service" means -
(a) construction of new building or civil structure or a part thereof or
(b) repair, alteration or restoration of or similar services in relation to, building or civil structure,
which is -
(i) used or to be used, primarily for or
(ii) occupied or to be occupied, primarily with or
(iii) engaged or to be engaged, primarily in,
commerce or, industry or work intended for commerce or, industry, but does, not include road, airport, railway, transport terminal, bridge, tunnel, long distance pipeline and dam],
(31) "consulting engineer" means any professionally qualified engineer or an engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering,
(32) "convention" means a formal meeting or assembly which is not open to the general public, but does not include a meeting or assembly, the principal purpose of which is to provide any type of amusement, entertainment or recreation,
(33) "courier agency" means a commercial concern engaged in the door-to-door transportation of time-sensitive documents, goods or articles utilizing the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles,
1.
Omitted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
2.
Subs. by Ibid.
3.
Inserted by Ibid.
(34) "credit rating agency" means any commercial concern engaged in the business of credit rating of any debt obligation or of any project or programme requiring finance, whether in. the form of debt or otherwise, and includes credit rating of any financial obligation, instrument or security, which has the purpose of providing a potential investor or any other person any information pertaining to the relative safety of timely payment of interest or principal,
(35) "custom house 'agent" means a person licensed, temporarily or otherwise, under the regulations made, Under sub-section (2) of Section 146 of the Customs \ct,..19'62 (52 of 1962),
(36) "data" hasthe meaning assigned to it in clause (0) of sub-section (1) of Section 2 of the Information Technology Act, 2000 (21 of 2000),
(37) "dry cleaning" includes dry cleaning of apparels, garments or other textile, fur or leather articles,
(38) "dry cleaner" means any commercial concern providing service in relation to dry cleaning,
(39) "electronic form" has the meaning assigned to it in clause (r) of sub-section (1) of Section 2 of the Information Technology Act, 2000 (21 of 2000),
1[(39a) "erection, commissioning or installation" means any service provided by a commissioning and installation agency in relation to erection, commissioning or installation of plant, machinery or equipment],
(40) "event management" means any service provided in relation to planning, promotion organising or presentation of any arts, entertainment, business, sports or any other event and includes any consultation provided in this regard,
(41) "event manager" means any person who is engaged in providing any service in relation to event management in any manner,
(42) "facsimile (FAX) "means a form of telecommunication by which fixed graphic images, such as printed texts and pictures are scanned and the information converted into electrical signals for transmission over the telecommunication system,
(43) "fashion designing" includes any activity relating to conceptualising, outlining, creating the designs and preparing patterns for costumes, apparels, garments, clothing accessories, jewellery or any other articles intended to be Worn by human beings and any other service incidental thereto,
(44)''fashion designer" means any person engaged in providing service In relation to fashion designing,
(45) "financial institution" has the meaning assigned to it in clause (c) of Section 45-1 of the Reserve Bank of India Act, 1934 (2 of 1934),
1.
Inserted by Finance (No.2) 'Act, 2004, w.e.f. 10/9/2004.
(46) "foreign exchange broker" includes any authorised dealer of foreign exchange,
1[(46a) "forward contract" has the meaning assigned to it in clause (c) of Section 2 of the Forward Contracts (Regulation) Act, 1952 (74 of 1952)],
(47) "franchise" means an agreement by which
(i) franchisee is granted representational right to sell or manufacture goods or to provide service or undertake any process identified with franchiser, whether or not a trade mark, service mark, trade name or logo or any such symbol, as the case may be, is involved,
(ii) the franchiser provides concepts of business operation to franchisee including know-how, method of operation, managerial' expertise: marketing technique or training and standards of quality control except passing on the ownership of all know-how to franchisee,
(iii) the franchisee is required to pay to the franchiser, directly or indirectly, a fee, and
(iv) the franchisee is under an obligation not to engage in selling or providing 'similar goods or services or process, identified with any other person,
(48) "franchiser" means any person who enters into franchise with a franchisee and includes any associate of franchiser or a person designated by franchiser to enter into franchise on his behalf and the term " franchisee" shall be construed accordingly,
(49) "general insurance business" has the meaning assigned to it in clause (g) of Section 3 of the General insurance Business (Nationalisation) Act, 1972 (57 of 1972),
(50) "goods" has the meaning assigned to it in clause (7) of Section 2 of the Sale of Goods Act, 1930 (3 of 1930),
1(50a) "goods carriage" has the meaning assigned to it in clause (14) of Section 2 of the Motor Vehicles Act, 1988 (59 of 1988),
(50b) "goods transport agency" means any commercial concern which provides service in relation to transport of goods by road and issues consignment note, by whatever name called],
(51) "health and fitness service" means service for physical well being such as, sauna and steam bath, turkish bath, solarium, spas, reducing or' slimming saloons, gymnasium, yoga, meditation, massage (excluding therapeutic massage) or any other like service,
(52) "health club and fitness centre" means any establishment, including a hotel or a resort, providing health and fitness service,
(53) "information" has the meaning assigned to it in clause (v) of sub section (1) of Section 2 of the Information Technology Act, 2000 (21 of 2000),
1.
Inserted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(54) "insurance agent" has the meaning assigned to it in clause (10) of Section 2 of the Insurance Act, 1938 (4 of 1938),
(55) "insurance auxiliary service" means any service provided by an actuary, an intermediary or insurance intermediary or an insurance agent in relation to general insurance business or life insurance business and includes risk assessment, claim settlement, survey and loss assessment,
1[(55a) "intellectual property right" means any right to intangible property, namely, trade marks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright,
(55b) " intellectual property service" means,-
(a) transferring, whether permanently or otherwise or
(b) permitting the use or enjoyment of, any intellectual property right],
(56) "intermediary or insurance intermediary" has the meaning assigned to it in clause (f) of sub-section (1) of Section 2 of the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999),
(57) "internet cafe" means a commercial establishment providing facility for accessing .internet,
(58) "insurer" means any person carrying on the general insurance business or life insurance business in India, .
(59) "interior decorator" means any person engaged, whether directly or indirectly, in the business of providing by way of advice, consultancy, technical assistance or in any other manner, services related to planning, design or beautification of spaces, whether man-made or otherwise' and includes a landscape designer,
(60) "leased circuit" means a dedicated link provided between two fixed locations for exclusive use of the subscriber and includes a speech circuit, a data circuit or a telegraph circuit,
(61) "life insurance business" has the meaning assigned to it in clause
(11) of Section 2 of the Insurance Act, 1938 (4 of 1938),
(62) "light motor vehicle" means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver,
(63)'''magnetic storage device" includes wax blanks, discs or blanks, strips or films for the purpose of original sound recording,
(64) "maintenance or repair" means any service provided by-
(i) any person under a maintenance contract or -agreement or
(ii) a manufacturer or any person authorised by him, in relation to maintenance or repair or servicing of any goods or equipment, excluding motor vehicle,
1.
Inserted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(65) "management consultant" means any person who is engaged in providing any service, either directly or indirectly, in connection with the management of any organisation in any manner and includes any person who renders any advice, consultancy or technical assistance, relating to conceptualising, devising, development, modification, rectification or up gradation of any working system of any organisation,
(66) "mandap" means any immovable property as defined in Section 3 of the Transfer of Property Act, 1882 (4 of 1882) and includes any furniture, fixtures, light fittings and floor coverings therein let out for a consideration for organising any official, social or business function,
(67) "mandap keeper" means a person who allows temporary occupation of a mandap for a consideration for organising any official, social. or business function,
(68) "manpower recruitment agency" means any commercial concern engaged in providing any service, directly or indirectly, in any manner for recruitment of manpower, to a client,
(69) "market research agency" means any commercial concern engaged in conducting market research in any manner, in relation to any product, service or utility, including all types of customised and syndicated research services,
(70) "maxicab" has the meaning assigned to it in clause (22) of Section 2 of the Motor Vehicles Act, 1988 (59 of 1988),
(71) "motorcab" has the meaning assigned to it in clause (25) of Section -2 of the .Motor Vehicles Act, 1988 (59 of 1988),
(72) "motor car" has the meaning assigned to it in clause (26) of Section 2 of the Motor Vehicles Act, 1988 (59 of 1988),
(73) "motor vehicle" has the meaning assigned to it in clause (28) of Section 2 of the Motor Vehicles Act, 1988 (59 of 1988),
(74) "non-banking financial company" has the meaning assigned to it in clause (f) of Section 45-1 of the Reserve Bank of India Act, 1934 (2 of 1934),
(75) "on-line information and database access or retrieval'means providing data or information, retrievable or otherwise, to a customer, in electronic form through a computer network,
1[(75a) "opinion poll" means any service designed to secure information on public opinion regarding social, economic, political or other issues,
(75b) "opinion poll agency" means any person engaged in providing any service in relation to opinion poll],
1.
Inserted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(76) "other port" has the meaning assigned to " port" in clause (4) of Section 30f the Indian Ports Act, 1908 (15 of 1908), but does not include the port defined in clause (80),
1[(76a) "outdoor caterer" means a caterer engaged in providing services in connection with catering at a place other than his own],
(77) ''pager'' means an instrument, apparatus or appliance which is a non-speech, one way personal calling system with alert and has the capability of receiving, storing and displaying numeric or alpha-numeric messages,
1[(77a) "pandal or shamiana" means a place specially prepared or arranged for organizing an official, social or business function,
(77b) ''pandal or shamiana contractor" means a person engaged in providing any service, either directly or indirectly, in connection with the' preparation, arrangement, erection or decoration of a pandal or shamiana and includes the supply of furniture, fixtures, lights and lighting fittings, floor coverings and other articles for use therein],
(78) ''photography'' includes still photography, motion picture photography, laser photography, aerial photography or fluorescent photography,
(79)''photography studio or agency" means any professional photographer or a commercial concern engaged in the business of rendering service relating to photography,
(80)''policy holder" has the meaning assigned to it in clause (2) of Section 2 of the Insurance Act, 1938 (4 of 1938),
(81)''port''has the. meaning assigned to. it in clause (q) of Section 2 of the Major Port Trusts Act, 1963 (38 of 1963),
(82)''port-service''.means any service rendered by a port or other port or any person authorised by such port or other port, in any manner, in relation to a vessel or goods,
(83)''practising chartered accountant" means a person who is a member of the Institute of Chartered Accountants of India and is holding a certificate of practice granted under the provisions of the Chartered Accountants Act, 1949 (38 of 191.9) and includes any concern engaged in rendering services 10 the field of chartered accountancy,
(84)''practising cost accountant" means a person who is a member of the InstituteofCost and Works Accountants of India and is holding a certificate. of practice granted under the provisions of the Cost and Works Accountants Act, 1959 (23 of 1959) and includes any concern engaged in rendering services In the field of cost accountancy,
1.
Inserted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(85) "practising company secretary" means a person who is a member of the Institute of Company Secretaries of India and is holding a certificate of practice granted under the provisions of the Company Secretaries Act, 1980 (56 of 1980) and includes any concern engaged in rendering services in the field of company secretaryship,
(86) "prescribed" means prescribed by rules made under this Chapter,
1[(86a) "programme" means any audio or visual matter, live or recorded which is intended to be disseminated by transmission of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly through the medium of relay stations,
(86b) "programme producer" means a c8mmercial concern which produces a programme on behalf of another person],
(87) "rail travel agent" means any person engaged in providing any service connected with booking of passage for travel by rail,
(88) "real estate agent" means a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting, of real estate and includes a real estate consultant,
(89) "real estate consultant" means a person who renders in. any manner, either directly or indirectly, advice, consultancy or technical assistance, in relation to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate, '"
1[(89a) "recognised association" has the meaning assigned to it in clause (j) of Section 2 of the Forward Contracts (Regulation) Act, 1952 (74 of 1952),
(89b) "registered association" has the meaning assigned, to it in clause (jj) of Section 2 of the Forward Contracts (Regulation) Act, 195} (74 of 1952)],
(90) "recognised stock exchange" has the meaning assigned to it in clause (f) of Section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956),
(91) "rent-a-cab scheme operator" means any person' engaged in the business of renting of cabs,
(92) "scientific or technical consultancy" means any advice, consultancy or scientific or technical assistance, rendered in any manner, either directly or indirectly, by a scientist or a technocrat or any science or technology institution or organisation, to a client, in one or more disciplines of science or technology,
(93) "securities" has the meaning assigned to it in clause (h) of Section 2 of the Securities Contracts (Regulation) Act, 1~56 (42 of 1956),
1.
Inserted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(94) "security agency" means any commercial concern engaged in the business of rendering services relating to the security of any property, whether movable or immovable or of any person, in any manner and includes the services of investigation, detection or verification, of any fact or activity, whether of a personal nature or otherwise, including the services of providing security personnel,
(95) "service tax" means tax leviable under the provisions of this Chapter, (96) "ship" means a sea-going vessel and includes a sailing vessel,
(97) " shipping line" means any person who owns or charters a ship and includes an enterprise which operates or manages the business of shipping,
(98) "sound recording" means recording of sound on a magnetic storage device and includes editing thereof, in any manner,
(99) "sound recording studio or agency" means any commercial concern engaged in the business of rendering any service relating to sound recording,
(100) "steamer agent" means any person who undertakes, either directly or indirectly -
(i) to perform any service in connection with the ship's husbandry or dispatch including the rendering of administrative work related thereto or
(ii) to book, advertise or canvass for cargo for or on behalf of a shipping line or
(iii) to provide container feeder services for or on behalf of a shipping line,
1[(101) "stock-broker" means a person, who has either made an application for registration or is registered as a stock-broker or sub-broker, as the case may be, in accordance with the rules and regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992)],
(102) "storage and warehousing" includes storage and warehousing services for goods including liquids and gases but does not include any service provided for storage of agricultural produce or any service provided by a cold storage,
(103)2[XXX]
(104) "subscriber" means a: person to whom any service of a telephone Connection or a facsimile (FAX) or a leased circuit or a pager or a telegraph or a telex has been provided by the telegraph authority,
1.
Substituted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
2.
Omitted by Ibid.
1[(104a) "survey and exploration of mineral'means geological, geophysical or other prospecting, surface or, sub-surface surveying or map making service, in relation to location or exploration of deposits of mineral, oil or gas],
(105) "taxable service" means any service provided -
(a) 2[to any person], by a stock-broker in connection with the sale or purchase of securities listed on a recognised stock exchange,
(b) to a subscriber, by the telegraph authority in relation to a telephone connection,
(c) to a subscriber, by the telegraph authority in relation to a pager,
(d) to a policy holder, by an insurer carrying on general insurance business in relation to, general insurance business,
(e) to a client, by an advertising agency in relation, to advertisement, in any manner,
(f) to a customer, by a courier agency in relation to door-to-door transportation of time-sensitive documents, goods or articles,
(g) to a client, by a consulting engineer in relation to advice, consultancy or technical assistance in any manner in' one or more disciplines of engineering ([but not in the discipline of computer hardware engineering or computer software engineering],
(h) to a client, by a custom house agent in relation to the entry or departure of conveyances or the import or export of goods,
(i) to a shipping line, by a steamer agent in relation to a ship's husbandry or dispatch or any administrative work related thereto as well as the booking, advertising or canvassing of cargo, including container, feeder services,
(j) to a client, by a clearing and forwarding agent in relation to clearing and forwarding operations, in any manner,
(k) to a client, by a manpower recruitment agency in relation to the recruitment of manpower, in any manner,
(l) to a customer, by an air travel agent in relation to the booking of passage for travel by air,
(m) to a client, by a mandap keeper in relation to the use of mandap in any manner including the facilities provided to the client in relation to such use and also the services, if any, rendered as a caterer,
(n) 'to any person, by a' tour operator in relation to a tour,
1.
Inserted by Finance(No. 2) Act, 2004, w.e.f. 10/9/2004.
2.
Subs. for " to an',' investor" by Ibid.
(o) to any person, by a rent-a-cab scheme operator in relation to the renting of a cab,
(p) to a client, by an architect in his professional capacity, in any manner,
(q) to a client, by an interior decorator in relation to planning, design or beautification of spaces, whether, man-made or otherwise, in any manner,
(r) to a client, by a management consultant in connection with the management of any organisation, in any manner,
(s) to a client, by a practising chartered accountant in his professional capacity, in any manner,
(t) to a client, by a practising cost accountant in his professional capacity, in any manner,
(u)to a client, by a practising company secretary in his professional capacity, in any manner,
(v) to a client, by a real estate agent in relation to real estate,
(w) to a client, by a security agency in relation to the security of any property or person, by providing security personnel or otherwise and includes the provision of services of investigation, detection or verification of any fact or activity,
(x) to a client, by a credit rating agency in relation to credit rating of any financial obligation, instrument or security,
(y) to a client, by a market research agency in relation to market research of any product, service or utility, in any manner,
(z) to a client, by an underwriter in relation to underwriting, in any manner,
(za) to a client, by a scientist or a technocrat or any science or technology institution or organisation, in relation to scientific or technical consultancy,
(zb) to a customer, by a photography studio or agency in relation to photography, in any manner,
(zc) to a client, by any commercial concern in relation to holding of a convention, in any manner,
(zd) to a subscriber, by the telegraph authority in relation to a leased circuit,
(ze) to a subscriber, by the telegraph authority in relation to a communication through telegraph,
(zf) to a subscriber, by the telegraph authority in relation to a communication through telex,
(zg) to a subscriber, by the telegraph authority in relation to a facsimile (FAX) communication,
(zh) to a customer, by a commercial concern, in relation to on-line information and database access or retrieval or both in electronic form through computer network, in any manner,
(zi) to a client, by a video production agency in relation to video-tape production, in any manner,
(zj) to a client, by a sound recording studio or agency in relation to any kind of sound recording,
(zk) to a client, by a broadcasting agency or organisation in relation to broadcasting in any manner and, in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes service provided by its branch office or subsidiary or representative in India or any agent appointed in India or by any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting the broadcasting charges on behalf of the said agency or organisation.
Explanation:-For the removal of doubts, it is hereby declared that so long as the radio or television programme broadcast is received in India and intended for listening or viewing, as the case may be, by the public, such service shall be a taxable service in relation. to broadcasting, even if the encryption of signals or beaming thereof through the satellite might have taken place outside India,
(zl) to a policy holder or insurer, by an actuary or intermediary or insurance intermediary or insurance agent, in relation to insurance auxiliary services concerning general insurance business,
1[(zm) to a customer, by a banking company or a financial institution including a non-banking financial company or any other body corporate or commercial concern in relation to banking and other financial services],
(zn) to any person, by a port or any person authorised by the port, in relation to port services, in any manner,
(zo) to a customer, by an" authorised service station, in relation to any service or repair of motor cars or two wheeled motor vehicles, in any manner,
(zp)2[XXX]
1.
Subs. by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
2.
Omitted by Ibid.
(Zq) to a customer, by a beauty parlour in relation to beauty treatment,
(zr) to any person, by a cargo handling agency in relation to cargo handling services,
(zs)1[to any person, by a cable operator, including a multisystem operator] in relation to cable services,
(zt) to a customer, by a dry cleaner in relation. to dry cleaning, (zu) to a client, by an event manager in relation to event management, (zv) to any person, by a fashion designer in relation to fashion designing,
(zw) to any person, by a health club and fitness centre in relation to health and fitness services,
(zx) to a policy holder, by an insurer carrying on life insurance business 2[in relation to the risk cover in life insurance],
(zy) to a policyholder or insurer by an actuary or intermediary or insurance intermediary or insurance agent, in relation to insurance auxiliary services concerning life insurance business,
(zz) to a customer, by a rail travel agent in relation to booking of passage for travel by rail,
(zza) to any person, by a storage or warehouse keeper in relation to storage and warehousing of goods,
(zzb) to a client, by a commercial concern in relation to business auxiliary service,
(zzc) to any person, by a commercial training or coaching centre in relation to commercial training or coaching,
(zzd) to a customer, by a commissioning and installation agency in relation to 3[ erection, commissioning or installation],
(zze) to a franchisee, by the franchiser in relation to franchise,
(zzf) to any person, by an internet cafe in relation to access of internet,
(zzg) to a customer, by any person in relation to maintenance or repair,
(zzh) to any person, by a technical testing and analysis agency, in relation to technical testing and analysis, .
(zzi) to any person, by a technical inspection and certification agency, in relation to technical inspection and certification,
(zzj) to a customer, by an authorised service station, in relation to any service or repair of any light motor vehicle,
1.
Subs. for “to a customer, by a cable operator" by Finance (No.2) Act, 2004, W.e.f. 10/9/2004.
2.
Subs. for " in relation to life insurance business" by Ibid.
3.
Subs. by Ibid.
(zzk) to a customer, by a foreign exchange broker other than those brokers in relation to banking and other financial services referred to in subclauses (zm) and (zp),
(zzl) to any person, by other port or any person authorised by that port in relation to port services, in any manner, and the term " service provider" shall be construed accordingly,
1[(zzm)to any person, by airports authority or any person authorised by it, in an airport or a civil enclave,
(zzn) to any person, by an aircraft operator, in relation to transport of goods by aircraft,
(zzo) to an exhibitor, by the organiser of a business exhibition, in relation to business exhibition,
(zzp) to a customer, by a goods transport agency, in relation to transport of goods by road in a goods carriage,
(zzq) to any person, by a commercial concern, in relation to construction service,
(zzr) to any person, by the holder of intellectual property right, in relation to intellectual property service,
(zzs) to any person, by an opinion poll agency, in relation to opinion poll,
(zzt) to a client, by an outdoor caterer,
(zzu) to any person, by a programme producer, in relation to a programme,
(zzv) to a customer, by any person, in relation to survey and exploration of mineral,
(zzw) to a client, by a pandal or shamiana contractor in relation to a pandal or shamiana in any manner and also includes the services, if any, rendered as a caterer,
(zzx) to a customer, by a travel agent, in relation to the booking of passage for travel,
(zzy) to any person, by a member of a recognised association or a registered association, in relation to a forward contract],
(106) "technical testing and analysis" means any service in relation to physical, chemical, biological or any other scientific testing or analysis of goods or material or any immovable property, but does not include any testing or analysis service provided in relation to human beings or animals,
(107) "technical testing and analysis agency" means any agency or person engaged in providing service in relation to technical testing and analysis,
1.
Inserted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(108) "technical inspection and certification" means inspection or examination of goods or process or material or any immovable property to certify that such goods or process or material or immovable property qualifies or maintains the specified standards, including functionality or utility or quality or safety or any other characteristic or parameters, but does not include any service in relation to inspection and certification of pollution levels,
(109) "technical inspection and certification agency" means any agency or person engaged in providing service in relation to technical inspection and certification,
(110) "telegraph" has the meaning assigned to it in clause (1) of Section 3 of the Indian Telegraph Act, 1885 (13 of 1885),
(111) "telegraph authority" has the meaning assigned to it in clause (6) of Section 3 of the Indian Telegraph Act, 1885 (13 of 1885) and includes a person who has been granted a licence under the first proviso to sub-section (l) of Section 4 of that Act,
(112) "telex" means a typed communication by using teleprinters through telex exchanges,
(113) "tour" means a journey from one place to another irrespective of the distance between such places, .
(114) "tourist vehicle" has the meaning assigned to it in clause (43) of Section 2 of the Motor Vehicles Act, 1988 (59 of 1988),
1[(115) "tour operator" means any person engaged in the business of planning, scheduling organizing or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport, and includes any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act,1988 (59 of 1988) or the rules made thereunder,
(115a) "travel agent" means any person engaged in providing any service connected with booking of passage for travel, but does not include air travel agent and rail travel agent],
(116) "underwriter" has the meaning assigned to it in clause (f) of rule 2 of the Securities and Exchange Board of India (Underwriters) Rules, 1993,
(117) "underwriting" has the meaning assigned to it in clause (g) of rule of the Securities and Exchange Board of India (Underwriters) Rules, 1993,
(118) "vessel'has the meaning assigned to it in clause (z) of Section of the Major Port Trusts Act, 1963 (38 of 1963),
(I19) "video production agency" means any professional videographer or any commercial concern engaged in the business of rendering services relating to video-tape production.
1.
Substituted by Finance (No.2) Act,20Q4, w.e.f. 10/9/2004.
(120) "video-tape production" means the process of any recording of any programme, event or function on a magnetic tape and includes editing thereof in any manner,
(121) 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.]
1[65A. Classification of taxable services:- (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clauses of clause (105) of Section 65,
(2) When for any reason, a taxable service is,prima facie,classifiable under two or more sub-clauses of clause (105) of Section 65, classification shall be effected as follows:
(a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description,
(b) composite services consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable,
(c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the,sub-clauses which equally merit consideration.,]
2[66. Charge of service tax:- There shall be levied a tax (hereinafter referred to as the service tax) at the rate of ten per cent of the value of the taxable services referred to in sub-clauses (a), (b), (c), (d), (e), (t), (g), (h), (i), (j), (k), (I), (m), (n), (0), (p), (q), (1'), (s), (t),(u), (v), (w), (x), (y), (z), (za), (zb), (zc), (zd), (ze), (zt), (zg), (zh), (zi), (zj), (zk), (zl), (zm), (zn), (zo), (zq), (zr), (zs), (zt),(zu),(zv), (zw), (zx), (zy), (zz), (za), (zzb), (zzc), (zzd), (zze), (zzt), (zzg), (zzh), (zzi), (zzj), (zzk), (zzl), (zzm), (zzn), (zzo), (zzp), (zzq), (zzr), (zzs), (zzt), (zzu), (zzv), (zzw), (zzx) and (zzy) of clause (105) of Section 65 and collected in such manner as may be prescribed].
3[67. Valuation of taxable services for charging service tax:- For the purposes of this Chapter, the value of any taxable service shall be the gross amount charged by the service provider for such service rendered by him.
4[Explanation 1J:-For the removal of doubts, it is hereby declared that the value of a taxable service, as the case may be, includes,-
1.
Ins. by the Finance Act, 2003, w.e.f. 14/5/200).
2.
Substituted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
3.
Subs. by Finance Act, 2001, w.e.f. 16/7/2001.
4.
Numbered by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(a) the aggregate of commission or brokerage charged by a broker on the sale or purchase of securities including the commission or brokerage paid by the stock-broker to any sub-broker,
(b) the adjustments made by the telegraph authority from any deposits made by the subscriber at the time of application for telephone connection or pager or facsimile or telegraph or telex or for leased circuit,
(c) the amount of premium charged by the insurer from the policy holder,
(d) the commission received by the air travel agent from the airline,
(e) the commission, fee or any other sum received by an actuary or intermediary or insural1ce intermediary or insurance agent from the " insurer,l [x x x]
(f) the reimbursement received by the authorised service station 'from manufacturer for carrying out any service of any motor car, 2[light motor vehicle] or two wheeled motor vehicle manufactured by such manufacturer, 3 [and]
3[(g) the commission or any amount received by the rail travel agent from the Railways or the customer,]
4[but does not include -----
(i) initial deposit made by the subscriber at the time of application for telephone connection or pager or facsimile (FAX) or telegraph or telex or for leased circuit, .
(ii) the cost of unexposed photography film, unrecorded magnetic tape or such other storage devices, if any, sold to the client during the course of providing the service,
(iii) the cost of parts or accessories or consumables such as lubricants and coolants, if any, sold to the customer during the course of service or repair of motor cars, light motor vehicle or two wheeled motor vehicles,
(iv) the airfare collected by air travel agent in respect of service provided by him,
(v) the rail fare collected by rail travel agent in respect of service provided by him,
(vi) the cost of parts or other material, if any, sold to the customer during the course of providing maintenance or repair service,5[ xxx]
1.
The word " and" omitted by the Finance Act, 2002, w.e.f. 16/8/2002.
2.
Ins. by the Finance Act, 2003, w.e.f. 14/5/2003.
3.
Ins. by the Finance Act, 2002, w.e.f. 16/8/2002.
4.
Subs. by the Finance Act, 2003, w.e.f. 14/5/2003.
5.
The word " and" omitted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
1[(vii) the cost of parts or other material, if any, sold to the customer during the course of providing erection, commissioning or installation service' and
(viii) interest on loans.]
2[Explanation 2.- Where the gross amount charged by a service provider is inclusive of service tax payable, the value of taxable service shall be such amount as with the addition of tax payable, is equal to the gross amount charged].
3[68. Payment of service tax:- (1)Every person providing taxable service to any person shall pay service tax at the rate specified in Section 66 in such manner and within such period as may be prescribed.
(2) Notwithstanding anything contained in sub-section (l), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in Section 66 and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.]
4[69. Registration:- Every person liable to pay the service tax under this Chapter or the rules 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 5[Superintendent of Central Excise].
6[70. Furnishing of returns:- 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 as may be prescribed.
71.7[xxx]
8[73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded:- (I) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or shortSubs. by the Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
1.
Subs. by the Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
2.
Inserted by Ibid.
3.
Subs. by the Finance (No.2) Act, 1998, w.e.f. 16/10/1998.
4.
Section 69 to 71 subs. by the Finance (No.2) Act, 1998, w.e.f. 16/10/1998.
5.
Subs. for " Central Excise Officer" by the Finance Act, 2001, w.e.f. 16/10/2001.
6.
Sections 70 and 71 subs. by Ibid.
7.
Sections 71 and 72 omitted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
8.
Subs. by the Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
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:
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 " one year" , 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 one year or five years, as the case may be.
(2) The Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise 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.
(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 (I) in respect of such service tax, and inform the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (I) in respect of the amount so paid:
Provided that the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise may determine the amount of short payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise shall proceed to recover such amount in the manner specified in this section, and the period of " one year" referred to in
sub-section (1) shall be counted from the date of receipt of such information of payment.
Explanation:-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 Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise, but for this sub-section.
(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 his Chapter or of the rules made thereunder with intent to evade payment of service tax.
(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) (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 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].
74. Rectification of mistake:- (1) With a view to rectifying any mistake apparent from the record, the I [Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] who passed any order under the provisions of this Chapter may, within two years of the date on which such order was passed, amen the order.
(2) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1), the I [Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided.
(3) Subject to the other provisions of this section, the '[Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] concerned
(a) may make an amendment under sub-section (1) of his own motion or
(b) shall make such amendment if any mistake is brought to his notice by the assessee or the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals).
(4) An amendment, which has the effect of enhancing 2[the liability of the assessee or reducing a refund] shall not be made under this Section unless the '[Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] concerned has given notice to the assessee of his intention so to do and has allowed the assessee a reasonable opportunity of being heard. .
(5) Where an amendment is made under this section, an order shall be passed in writing by the '[Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] concerned.
(6) Subject to the other provisions of this Chapter where any such amendment has the effect of reducing the3[liability of an assessee or increasing the refund], the l[Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] shall make any refund which may be due to such assessee.
(7) Where any such amendment has the effect of enhancing the 3[liability of the assessee] or reducing the refund already made, the I [Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] shall make an order specifying the sum payable by the assessee and the provisions of this Chapter shall apply accordingly.
1.
Subs. for " Central Excise Officer" by the Finance Act, 2001, w.e.f. 16/1/2001
2.
Subs. for certain words by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
3.
Subs. for " assessment" by Ibid.
1[75. Interest on delayed payment of service tax:- Every person, liable to pay the tax in accordance with the provisions of Section 68 or rules made thereunder, who fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, shall pay simple interest 2[ at such rate not below ten per cent and not exceeding thirty-six per cent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette], for the period by which such crediting of the tax or any part thereof is delayed.
75A.3[XXX]
76. Penalty for failure to collect or pay service tax:- Any person, liable to pay service tax in accordance with the provisions of Section 68 or the rules made thereunder, who fails to pay such tax shall pay in addition to paying such tax, and interest on that tax in accordance with the provisions of Section 75, a penalty which shall not be less than 4[one hundred rupees for every day during which such failure continues] but which may extend to two hundred rupees for every day during which such failure continues, so, however, that the penalty under this clause shall not exceed the amount of service tax that he failed to pay.
5[77. Penalty for contravention of any provision for which no penalty is provided:- Whoever contravenes any of the provisions of this Chapter or any rule made thereunder for which no penalty is separately provided in this Chapter, shall be liable to a penalty which may extend to an amount not exceeding one thousand rupees].
78. Penalty for suppressing value of taxable service:- 6[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 provision of this Chapter or of the rules made thereunder with intent to evade payment of service tax, the person, liable to pay such service tax or erroneous refund, as determined under sub-section (2) of Section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice, the amount of service tax so not levied or paid or short-levied or short-paid or erroneously refunded]:
1.
Sections 75 to 77 subs. by the Finance (No.2) Act, 1998, w.e.f. 16/10/1998.
2.
Subs. for certain words by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
3.
Omitted by Ibid.
4.
Subs. for " one hundred rupees" by Ibid.
5.
Subs. by Ibid.
1[Provided that where such service tax as determined under sub-section (2) of Section 73, and the interest payable thereon under Section 75, is paid within thirty days from the date of communication of order of the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise determining such service tax, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the service tax so determined:
Provided further that the benefit of reduced penalty under the first proviso shall be available only if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso:
Provided also that where the service tax determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the service tax as reduced or increased, as the case may be, shall be taken into account:
Provided also that in case where the service tax determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of service tax so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of communication of the order by which such increase in service tax takes effect.
Explanation:-For the removal of doubts, it is hereby declared that
(1) the provisions of this section shall also apply to cases in which the order determining the service tax under sub-section (2) of Section 73 relates to notices issued prior to the day on which the Finance Bill, 2003 receives the assent of the President.
(2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.]
79. Penalty for failure to comply with notice:- 2[XXX]
80. Penalty not to be imposed in certain cases:- Notwithstanding anything contained in the provisions of 3[Section 77 or Section 78], no penalty
1.
Subs. by the Finance Act, 2003, w.e.f. 14/5/2003.
2.
Omitted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
3.
Subs. By Ibid shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure.
81. Offences by companies:- '[xxx]
82. Power to search premises:- (1) If the 2[Commissioner of Central Excise] has reason to believe that any documents or books or things which in his opinion will be useful for or relevant to any proceeding under this Chapter are secreted in any place, he may authorise any 3[x x x] 4[Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] 5[to search for and seize or may himself search for and seize such documents or books or things.]
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches, shall, so far as may be, apply to searches under this section as they apply to searches under that Code.
83. Application of certain provisions of Act 1 of 1944:- The provisions of the following sections of the Central Excise Act, 1944 (1 of 1944), as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise:.
9C, 9D, 11, 11B,6[1IBB, 7[l1C, 11D 12,] 12A] 12B, 12C, 12D, 12E, 14, 15, 35F 10 350 (both inclusive), 35Q, 36, 36A, 36B, 37A, 37B, 37C, 37D and 40.
84. Revision of orders by the Commissioner of Central Excise:- (1) The Commissioner of Central Excise may call for the record of a proceeding under this Chapter which has been taken by the 4[Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order thereon as he thinks fit.
(2) No order which is prejudicial to the assessee shall be passed under this section unless the assessee has been given an opportunity of being heard.
(3) The Commissioner of Central Excise shall communicate the order passed by him under sub-section (1) to the assessee, the4[AssistantCommissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] and the Board.
1.
Omitted by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
2.
Subs. for Central Excise Officer" by the Finance (No.2) Act, 1998, w.e.f. 16/10/1998.
3.
The word " other" omitted by the Finance Act, 2002, w.e.f. 16/8/2002.
4.
Subs. for Central Excise Officer" by the Finance Act, 2001, w.e.f. 16/7/2001.
5.
Subs. by the Finance Act, 2002, w.e.f. 16/8/2002.
6.
Inserted by the Finance (No.2), Act, 1998, w.e.f. 16/10/1998.
7.
Subs. for " 11D" by the Finance Act, 2003, w.e.f. 14/5/2001.
(4) No order under this section shall be passed by the Commissioner of Central Excise in respect of any issue if an appeal against such issue is pending before the Commissioner of Central Excise (Appeals).
(5) No order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed.
85. Appeals to the Commissioner of Central Excise (Appeals):- (1) Any person aggrieved by any assessment order passed by the' [Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise] under2[XXX] Section 73 or denying his liability to be assessed under this Chapter or by an order levying interest 3[ or penalty or denying any refund of service tax under this Chapter], may appeal to the Commissioner of Central Excise (Appeals).
(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.
(3) An appeal shall be presented within three months from the date of receipt of the decision or order of the l[Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise], relating to service tax, interest or penalty under this Chapter:
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.
(4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty:
Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable
opportunity of showing cause against such enhancement.
(5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944).
86. Appeals to Appellate Tribunal:- (1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under Section 84 or an order passed by a Commissioner of Central Excise (Appeals) under Section 85, may appeal to the Appellate Tribunal against such order.
1.
Subs. by the Finance Act, 2001, w.e.f. 16/7/2001.
2.
The words " Section 71, Section 72 or" omitted by Finance (No.2), Act, 2004, w.e.f. 10/9/2004.
3.
Subs. for " penalty under this Chapter" by the Finance Act, 2003, w.e.f. 14/5/2003.
1[(2) The Board may, if it objects to any order passed by the Commissioner of Central Excise under Section 84, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.
(2A) The Commissioner of Central Excise may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under Section 85, direct the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.]
(3) Every appeal under sub-section (1) 2[or sub-section (2) or sub-section (2A)] shall be filed within three months of the date on which the order sought to be appealed against is received by the assessee, the Board or by the Commissioner of Central Excise, as the case may be.
3[(4) The Commissioner of Central Excise or Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise or the assessee, as the case may be, on receipt of a notice that an appeal against the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2) or subsection (2A)] by the other party may, notwithstanding that he may not have appealed against such order or any part thereof, within forty-five days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4) if it is satisfied that there was sufficient cause for not presenting it within that period.
4[(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of demand of service tax and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of -
(a) where the amount of service tax and interest demanded and penalty . levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees,
1.
Subs. by the Finance Act, 2001, w.e.f. 16/7/2001.
2.
Subs. for " or sub-section (2) "by the Finance Act, 2001, w.e.f. 16/7/2001.
3.
Subs. by the Finance Act, 2001, w.e.f. 16/7/2001.
4.
Subs. by Finance (No.2) Act, 2004, w.e.f. 10/9/2004.
(b) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees,
(c) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees:
Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2) or sub-section (2A) or a memorandum of cross-objections
referred to in sub-section (4).
(6A) Every application made before the Appellate Tribunal -
(a) in an appeal for grant of stay or for rectification of mistake or for any other purpose or
(b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees].
(7) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944
(1 of 1944).
87 to 92 1[x x x].
2[93. Power to grant exemption from service tax:- (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally or subject to such conditions as may be specified in the notification, taxable service of any specified description from the whole or any part of the service tax leviable thereon.
(2) If the Central Government is satisfied that it is necessary in the public Interest so to do, it may, by special order in each case, exempt any taxable service of any specified description from the payment of whole or any part of the service tax leviable thereon, under circumstances of exceptional nature to be stated in such order. ]
94. Power to make rules:- (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Chapter.
2[(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
1.
Omitted by the Finance (No.2) Act, 1998, w.e.f. 16/10/1998
2.
Subs. by Ibid.
(a) collection and recovery of service tax under Sections 66 and 68,
(b) the time and manner and the form in which application for registration shall be made under Section 69,
(c) the form, manner and frequency of the returns to be furnished under Section 70,
(d) the form in which appeal under Section 85 or under sub-section (6) of Section 86 may be filed and the manner in which they may be verified,
(e) the manner in which the memorandum of cross objections under sub section (4) of Section 86 may be verified,
1[(ee) the credit of service tax paid on the services consumed for providing a taxable service in case where the services consumed and the service provided fall in the same category of taxable service,]
2[(eee) the credit of service tax paid on the services consumed or duties paid or deemed
to have been paid on goods used for providing a taxable service,]
3[(t) provisions for determining export of taxable services, (g) grant of exemption to or rebate of service tax paid on, taxable services which are exported out of India
(h) rebate of service tax paid or payable on the taxable services consumed or duties paid or deemed to have been paid on goods used for providing taxable services which are exported out of India,
(i) any other matter which by this Chapter is to be or may be prescribed]. (3) The power to make rules conferred by this section shall on the first occasion of the exercise thereof include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Chapter come into force.
(4) Every rule made under this Chapter and every notification issued under Section 93 shall be laid, as soon as may be, after it is madeorissued, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule should not be made or the notification should not be issued, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.
1.
Ins. by the Finance Act, 2002, w.e.f. 16/8/2002.
2.
Ins. by the Finance Act, 2003, w.e.f. 14/5/2003.
3.
Subs. by Finance (No.2) Act, 2004, w.e.f. 10/9/2004. t
1[95. Power to remove difficulties:- (1) If any difficulty arises in respect of implementing or assessing the value of, any taxable service incorporated in this Chapter by the Finance Act, 2002, the Central Government may, by order published in the Official Gazette, which is not inconsistent with the provisions of this Chapter, remove the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the date on which the provisions of the Finance Act, 2002 incorporating such taxable services in this Chapter come into force.
2[(lA) If any difficulty arises in respect of implementing or assessing the value of, any taxable service incorporated in this Chapter by the Finance Act, 2003, the Central Government may, by order published in the Official Gazette, not inconsistent with the provisions of this. Chapter, remove the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the date on which the provisions of the Finance Act, 2003 incorporating such taxable services in this Chapter come into force.]
3[(IB) If any difficulty arises in respect of implementing or assessing the value of, any taxable service incorporated in this Chapter by the Finance (No.2) Act, 2004, the Central Government may, by order published in the Official Gazette, not .inconsistent with the provisions of this Chapter, remove the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the date on which the Finance (No.2) Bill, 2004 receives the assent of the President].
(2) Every order made under this section shall be laid, as soon as may after It is made, before each House of the Parliament.]
96. Consequential amendment:- In the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974), in the Schedule, after entry 7 relating to the Central Excise Act, 1944 (1 of 1944), the following entry shall be inserted, namely:
" 7A Chapter V of the Finance Act, 1994."
1.
Subs by the Finance Act, 2002, w.e.f. 16/8/2002.
2.
Ins.by the Finance Act, 2003, w.e.f. 14/5/2003.
3.
Ins by Finance (No.2) Act. 2004. w.e.f. 10/9/2004
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