Clause by Clause analysis of Service Tax provisions in Finance (No.2) Bill, 2014
Budget 2014 seems to be a mix bag for meeting multiple objectives. The budget aims to serve rectification which cannot be undone, planning for “achhe din” in long term, in short term a budget of introduction of remedial measures by stroke of pen and a budget infusing confidence in government policies by Indian citizens and investors across globe. To the surprise of all, Finance Minister has brought in changes more than expected. While everyone thought it to be a status quo kind of budget, the new government has made it clear in its very first budget that every year counts and there shall be no rest till the objective is achieved. The budget seems to address certain much requisite changes while bringing in stronger provisions to push compliance amongst subjects. Amongst other taxes, Finance Minister has brought about a number of changes in Service Tax as well. Changes range from reduction in exemptions, to curtailment of power of relief by Appellate authorities to plugging of procedural lapses. Even the Budget Circular to this effect explains the basis of changes as “The main focus in service tax at the present juncture is to widen the tax base and enhance compliance.” In a simple gist:
- Advertisement and travel by radio cabs and air-conditioned contract carriages withdrawn got costlier
- All commission earned from outside India is now taxable
- Carrying cost of cotton and organic manure reduced
- Relief to rent a cab operators and tour operators from cascading effect of taxes
- Scope of exemption to Education related services narrowed to few specified services
- Recovery from Successor made possible under Service Tax
- Mandatory stay deposit
- Penalty relief in case of extended period no longer available to assessee. Thus, penalty seems to have become automatic.
We shall now discuss the important changes as brought in by the Budget in detail.
1.1.Transportation by Radio taxi made taxable [effective from a date to be notified later after enactment of Finance (No.2) Bill, 2014]:
Service tax is proposed to be levied on services provided by radio taxis or radio cabs, whether or not air-conditioned [section 66D (o)(vi)]. The abatement presently available to rent-a-cab service would also be made available to radio taxi service. A definition of radio taxi is being included in the exemption notification No.25/2012-ST, which reads as follows:
““radio taxi” means a taxi including a radio cab, by whatever name called, which is in two-way radio communication with a central control office and is enabled for tracking using Global Positioning System (GPS) or General Packet Radio Service (GPRS)”
1.2. All sale of space except print media made taxable [effective from a date to be notified later after enactment of Finance (No.2) Bill, 2014]:
Service tax leviable currently on sale of space or time for advertisements in broadcast media, namely radio or television [section 66D (g) read with section 66B], is proposed to be extended to cover such sales on other segments like online and mobile advertising. The new levy would further extend to advertisements in internet websites, out-of-home media, on film screen in theatres, bill boards, conveyances, buildings, cell phones, Automated Teller Machines, tickets, commercial publications, aerial advertising, etc. Sale of space for advertisements in print media, however, would continue to be in the negative list and hence remain excluded from service tax. Print media is being defined in service tax law for the purpose.
(39a) “print media” means,—
(i) “book” as defined in sub-section (1) of section 1 of the Press and Registration of Books Act, 1867, but does not include business directories, yellow pages and trade catalogues which are primarily meant for commercial purposes;
(ii) “newspaper” as defined in sub-section (1) of section 1 of the Press and Registration of Books Act, 1867;’
Book has been defined in the captioned Act as follows:
“”Book” includes every volume, part of division of a volume, and pamphlet, in any language, and every sheet of music, map, chart of plan separately printed.”
Newspaper has been defined as under:
“newspaper” means any printed periodical work containing public news or comments on public news
2.1.Changes in Exemptions:
2.1.1. Withdrawal of exemption to services by way of technical testing or analysis of newly developed drugs [effective from July 11, 2014]:
Exemption to services by way of technical testing or analysis of newly developed drugs, including vaccines and herbal remedies on human participants by a clinical research organization approved to conduct clinical trials by the Drug Controller General of India is being withdrawn. India being a big market for Human drug testing, such exemption was primarily used by Multinationals for their testing and not primarily for production of drugs for masses and accordingly the said exemption was removed.
At present, a huge number of services (as per certain experts almost all input services used by educational institutions) as received by educational institution are exempt from Service Tax under the umbrella of “auxiliary educational services”. With prevailing doubts regarding the scope and meaning of “auxiliary educational services”, the entire concept has been delted and instead, exemption to specific services when provided to educational institutions.
Accordingly, the following services received by eligible educational institutions are exempted from service tax:
- transportation of students, faculty and staff of the eligible educational institution;
- catering service including any mid-day meals scheme sponsored by the Government;
- security or cleaning or house-keeping services in such educational institution
- services relating to admission to such institution or conduct of examination. Further, for the purposes of this exemption, “educational institution” is being defined in the exemption notification 25/2012-ST as institutions providing educational services specified in the negative list.
Further, the exemption to services provided by way of renting of immovable property to educational institutions also has been withdrawn and thus, all Company Trust model providing infrastructure to educational institutions without any indirect tax shall now have a tax cost.
However, to add on the ambiguity, services provided by educational institution to its students, faculty and staff has been added and accordingly, the authorities might contest that for the period prior to July 11, 2014, such services were taxable. It is requested that government should bring suitable clarification to this effect also.
In order to address doubts on account of use of the word “commercial” in the entry 18 of the Mega Exemption Notification as to whether dharmashalas, ashram or any such non commercial entity which offer accommodation would be covered therein, government has made the entry generic to all places offering accommodation services. Accordingly, Services by any place of stay be it Hotel, camsite, dharamshala etc, providing services of residential or lodging and having declared tariff of a unit of accommodation below one thousand rupees per day or equivalent shall now be exempted from Service Tax.
2.1.4.Exemption in respect of services in relation to municipal corporation [effective from July 11, 2014]:
For greater clarity, the exemption in respect of services provided to Government or local authority or governmental authority, has been made more specific. Services by way of water supply, public health, sanitation conservancy, solid waste management or slum improvement and up-gradation will continue to remain exempted but the exemption shall not be available to ancillary services for such functions such as consultancy, designing, etc.
2.1.5.Extension of exemption to life micro-insurance schemes having sum assured upto Rs 50,000 [effective from July 11, 2014]:
All life micro-insurance schemes approved by the Insurance Regulatory Development Authority (IRDA), where sum assured does not exceed Fifty Thousand Rupees are being exempted from service tax.
2.1.6.Extension of exemption to transportation of organic manure and cotton [effective from July 11, 2014]:
Transport of organic manure and cotton, ginned or baled by GTA, rail or vessel has been exempted. Therefore, organic manure will be on par with fertilizer which is already exempted.
2.1.7. Extension of exemption to activities related to cotton, ginned or baled [effective from July 11, 2014]:
Services by way of loading, unloading, packing, storage or warehousing, transport by vessel, rail or road (GTA), of cotton, ginned or baled, is being exempted. This comes in addition to similar exemption provided to rice by government. However, service tax for intervening period i.e. from July 1, 2012 till July 10, 2014 shall be demanded by authorities on such services.
2.1.8.Extension of exemption to activities of Common Bio-medical Waste Treatment Facility operators [effective from July 11, 2014]:
Services provided by Common Bio-medical Waste Treatment Facility operators by way of treatment, disposal of bio medical waste or processes incidental to such treatment or disposal are being exempted.
2.1.9.Exemption in respect of air-conditioned contract carriages withdrawn [effective from July 11, 2014]:
Presently service of passenger transportation by a contract carriage (other than radio cabs whether air-conditioned or not) other than for the purposes of tourism, conducted tour, charter or hire, is exempt from service tax. The scope of exemption is being reduced by withdrawing the exemption in respect of air-conditioned contract carriages. As a result, any service provided for transport of passenger by air-conditioned contract carriage including which are used for point to point travel, will attract service tax. Service tax will be charged at an abated value of 40% of the amount charged from service receiver; therefore, effective tax will be 4.944%. Services by non-air conditioned contract carriages for purposes other than tourism, conducted tour, charter or hire continue to be exempted.
2.1.10.ESIC services for prior period exempted [effective from date of enactment of Finance (No.2) Act, 2014]:
This was an amendment to remove the ambiguity whereby in absence of exemption, services of ESIC could have been brought within the scope of service tax. Service provided by Employees State Insurance Corporation (ESIC) during the period prior to 1.7.2012 is proposed to be exempted from service tax.
2.1.11. Services received by RBI from outside India for specific forex management exempted [effective from July 11, 2014]:
Specialized financial services received by RBI from outside India, in the course of management of foreign exchange reserves, e.g. external asset management, custodial services, securities lending services, are being exempted. On such services RBI was to discharge Service Tax under reverse charge.
2.1.12.Services provided by an Indian tour operator to foreign nationals for foreign tours exempted [effective from July 11, 2014]:
Services provided by the Indian tour operators to foreign tourists in relation to tours wholly conducted outside India are being exempted. This exemption is available to Indian tour operators in cases where they organize tours for a foreign tourist wholly outside India, e.g., service provided to a Sri Lankan for a tour conducted in Bhutan. It may be noted that service provided by a tour operator in relation to an inbound or an outbound tours continue to be leviable to service tax. In brief:
|Tour||Wholly In India||Wholly Outside India||Partially in India|
|Foreign Tourist||Taxable||Non Taxable||Taxable|
2.2.1.Condition of non availment of Cenvat credit not applicable on service recipient in case of GTA [effective from July 11, 2014]:
The condition for availing abatement in case of GTA service is being amended with immediate effect to clarify that the condition for non- availment of credit is required to be satisfied by the service providers only. Service recipient will not be required to establish satisfaction of this condition by the service provider. Accordingly, in case of GTA, service recipient can discharge the liability at the abated value of 25%. This is a welcome clarification to remove all ambiguities in this arena as certain industries discharge huge Service Tax under reverse charge in GTA. Technically, when service recipient is liable to pay Service Tax, the services of GTA gets outside the purview of output services and thus, no Cenvat Credit could be availed on such services by service provider. However, the present clarification has fortified the understanding.
Service of transportation of passenger by air-conditioned contract carriages is taxable with immediate effect, as stated earlier. Hence, an entry has been inserted at Sl. No. 9A providing that the taxable portion of such service shall be 40% with the condition that CENVAT credit of inputs or capital goods or input services has not been taken.
Service of transportation of passenger by radio taxis is proposed to be made taxable by amending the Finance Act, 1994. Hence, suitable abatement has been provided that the taxable portion of such service shall be 40% with the condition that CENVAT credit of inputs or capital goods or input services has not been taken.
2.2.4.Allowance of Cenvat credit of another rent a cab operator in case of availment of Cenvat Credit by rent a cab operator [effective from October 1, 2014]:
The condition against abatement in case of rent a cab is amended to allow the credit of input service of renting of a motor cab if such services are received from a person engaged in the similar line of business i.e. a sub-contractor providing services of renting of motor cab to the main contractor. Credit shall be available as under:
- The whole of the CENVAT credit has been allowed with respect to input service of renting of any motor cab, received from a person who is paying service tax on 40% of the value of services.
- The CENVAT credit eligibility will be restricted to 40% of the credit of the input service of renting of any motor cab if service tax is paid or payable on full value of the services i.e. no abatement is availed. Thus, if the sub contractor is not availing abatement, then credit from his invoice shall be restricted to 40% of such credit as shown on invoice.
It is pertinent to note that no other Credit other than above is allowed against such services and such services shall continue to be considered as exempted services for all purpose of Cenvat credit. Also, such benefit is not available in case of radio taxis, which has been provided abatement by way of a separate entry. This is a welcome step for tour operators and Hospitality industry including Hotels who have faced this problem of dual taxation since long.
2.2.5.Allowance of Cenvat credit of another Tour operator in case of availment of Cenvat Credit by a tour operator [effective from October 1, 2014]:
Tour operator service providers are also being allowed to avail CENVAT credit on the input service of another tour operator, which are used for providing the taxable service. This is being provided to avoid cascading of taxes.
- Increase in abatement in case of transport of goods by vessel [effective from October 1, 2014]:
Taxable portion in respect of transport of goods by vessel is being reduced from 50% to 40%. Effective service tax will decrease from the present 6.18% to 4.944%, with effect from 1st October, 2014.
In renting of motor vehicle, where the service provider does not take abatement the portion of service tax payable by the service provider and service receiver will be modified as 50% each. Thus, in all cases where there is full Service Tax charged or no Service Tax charged by service provider of rent a cab, recipient shall now discharge 50% of 12.36%.
- Scope of Reverse charge liability in case of payment to directors expanded [effective from July 11, 2014]:
Earlier only Companies were liable to pay Service tax under reverse charge on payments made to Directors. Service provided by a Director to a body corporate is being brought under the reverse charge mechanism thereby including body corporates such as the Reserve Bank of India etc.
- Scope of Reverse charge liability in case of payment to recovery agents [effective from July 11, 2014]:
Service recipient being Banks, Financial Institutions and NBFC shall now be liable to discharge the liability of Services Tax under reverse charge mechanism for services provided by Recovery Agents to them. Recovery agents being individuals and that too in most of the cases had been non compliant and thus, in order to plug such leakage of revenue, whole of the liability has now been shifted to financial institutions. This would add upto the cost of such institutions as only 50% of such amount is available as Cenvat credit to them.
3.Substantial changes in Service Tax provisions:
3.1.Service tax to have its own Rate of Exchange [effective from a date to be notified later after enactment of Finance (No.2) Bill, 2014]:
Currently, Custom notified rates are used for discharge of liability on import and export transaction under Service Tax. The Explanation to Section 67A is being amended to enable the Government to prescribe rules for determination of rate of exchange for calculation of taxable value in respect of certain services. Separate set of Rules shall be prescribed once the amended Section is notified.
3.2.Advance Ruling made available to resident Private Limited Companies [effective from July 11, 2014]:
The resident private limited company is being included as a class of persons eligible to make an application for Advance Ruling in service tax.
3.3.Timebound adjudication of Service Tax notices [effective from enactment of Finance (No.2) Bill, 2014]:
Section 73 is being amended to prescribe time limits for completion of adjudication as already exists in Central Excise. This time limit would need to be followed, as far as possible. Time limit as prescribed is as follows:
|In case of notice issued within eighteen months (without extending limitation)||Within six months from the date of notice|
|In case of notice issued evoking the extended period of five years||Within one year from the date of notice|
However, the section provides the limit with the words – “where it is possible to do so”. Thus, the option for closing order beyond the prescribed period remains with the assessing officer.
3.4.Power to waive penalty under Section 80 restricted [effective from enactment of Finance (No.2) Bill, 2014]:
Section 80 is being amended to exclude the power to waive the following penalties:
- Penalty under Section 77 – providing penalty for contravention of rules and provisions of Act for which no penalty is specified elsewhere
- Penalty under Section 78A – The only waiver available in Section80 waas that of first proviso to Section 78(1) Provided that where true and complete details of the transactions are available in the specified records,
Thus, the only penalty now availed to be waived under Section 80 is that of Section 76, which is not effective in light of provision of Section 73(3).
Powers under Section 82(1) is being expanded, to empower Joint Commissioner or Additional Commissioner or any other officer notified by the Board to authorize any Central Excise Officer to search and seize.
Section 87 is being amended to incorporate power to recover dues of a predecessor from the assets of a successor purchased from the predecessor as it is presently provided for in section 11 of the Central Excise Act, 1944. Accordingly, any person acquiring any business must ensure two things – that there are no outstanding Service Tax dues of the business as they cannot be withheld by the transferor and also intimation to such transfer is preintimated to Central Excise officer so as to nullify any unknown Service Tax liabilities.
3.7.Rule making power of government enhanced [effective from enactment of Finance (No.2) Bill, 2014]:
Section 94 is being amended to obtain rule making powers (a) to impose upon assessees, inter alia, the duty of furnishing information, keeping records and making returns and specify the manner in which they shall be verified; (b) for withdrawal of facilities or imposition of restrictions (including restrictions on utilization of CENVAT credit) on service provider or exporter, to check evasion of duty or misuse of CENVAT credit; and (c) to issue instructions in supplemental or incidental matters.
To encourage prompt payment of service tax, it is being proposed to introduce interest rates which would vary on the extent of delay. Simple interest rates per annum payable on delayed payments under section 75, are prescribed as follows:
|Sl.No||Period of delay||Rate of simple interest|
|1.||Up to six months||18 per cent.|
|2.||More than six months
and up to one year
|18 per cent. for the first six months of delay and 24 per cent. for the delay beyond six months.|
|3.||More than one year||18 per cent. for the first six months of delay; 24 per cent. for the period beyond six months up to one year and 30 per cent. for any delay beyond one year.|
4.Changes in Rules
E-payment of service tax is being made mandatory for all assesses. Relaxation from e-payment may be allowed by the Deputy Commissioner/Asst. Commissioner on case to case basis.
Rule in case of goods imported for repaid is amended to prescribe that it would suffice for the purpose of exclusion of repair service from applicability of rule 4(a) that the goods imported for repair are exported after repair without being put to any use other than that which is required for such repair. It has further been clarified that this exclusion does not apply to goods in general and goods be imported specifically for repair. In case of goods that arrive in the taxable territory in the usual course of business and are subject to repair while such goods remain in the taxable territory, e.g., any repair provided in the taxable territory to containers arriving in India in the course of international trade in goods will be governed by rule 4.
The definition of intermediary is being amended to include the intermediary of goods in its scope. Accordingly, an intermediary of goods, such as a commission agent or consignment agent shall be covered under rule 9(c) of the Place of Supply of Services Rules and his place of provision shall be the location of service provider. Accordingly, all commissions for foreign buyers / sellers shall now be taxable in India and vice versa. Thus, there shall be no longer an export of service by Commission agent. The amendment is brought in purview as India is a major market for sourcing of goods and to counter the decision in cases like GAP International Sourcing (India) P. Ltd. v CST [2014-TIOL-465-CESTAT-DEL], wherein it was held that recipient of such services is located outside India.
Place of provision of Service consisting of hiring of Vessels (excluding yachts) and Aircraft, irrespective of whether short term or long term, will be covered by the general rule, that is, the place of location of the service receiver. Hiring of yachts would however continue to be covered by rule 9 (d) i.e. location of service provider.
The first Proviso to rule 7 of the Point of Taxation Rules is being amended to reduce the time allowed for payment to service provider from six months to three months. However, as a relief, in case such payment is not made within prescribed time, the liability to pay Service Tax shall arise from the first day that occurs immediately after a period of three months from the date of invoice. Thus, in case of reverse charge, the amended date of liability is as under:
|Date of payment||Point of taxation|
|Payment made to vendor within three months from date of invoice||Date of Payment|
|Payment made to vendor after three months from date of invoice||First day that occurs immediately after a period of three months from the date of invoice|
Suitable provision for invoices issued before October 1, 2014 and whose payment period of six months is pending as on October 1, 2014 is made by way of Rule 10 which provides that if payment is made within six months from the date of invoice, date of payment shall be point of taxation, else Rule 3 shall apply.
In Rule 2A of the Service Tax (Determination of Value) Rules, 2006, category “B” and “C‟ of works contracts are proposed to be merged into one single category, with percentage of service portion as 70%. Thus, the following two categories of valuation under Option 2 of Rule 2A shall remain in case of works contract:
5.Changes in Cenvat Credit Rules, 2004
5.1.Time restriction on availment of Cenvat credit on missed invoices [effective from September 1, 2014]:
A manufacturer or a service provider shall take credit on inputs and input services within a period of six months from the date of issue of invoice, bill or challan. Thus, the decisions in case of Central Bank of India [2012-TIOL-1314-CESTAT-MAD] holding that there is no time limit for taking Cenvat Credit shall no longer help assessee in availing long forgotten credit.
5.2.Payment as pre-condition for availment of Cenvat Credit removed in case of full reverse charge [effective July 11, 2014]:
In case of service tax paid under full reverse charge, the condition of payment of invoice value to the service provider for availing credit of input services is being withdrawn. However, there is no change in respect of partial reverse charge.
5.3.Cenvat credit to reinstate on reinstatement of output services as Export [effective July 11, 2014]:
Re-credit of CENVAT credit reversed on account of non-receipt of export proceeds within the specified period or extended period, to be allowed, if export proceeds are received within one year from the period so specified or extended period. This can be done on the basis of documents evidencing receipt of export proceeds.
5.4.Place of removal defined [effective July 11, 2014]:
Place of removal has been defined as under:
(qa) “place of removal” means-
- a factory or any other place or premises of production or manufacture of the excisable goods;
- a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty;
- a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory,
from where such goods are removed;
Section 35F of the Central Excise Act has already been made applicable to Service Tax. This section is being substituted with a new section to prescribe a mandatory fixed pre-deposit of 7.5% of the tax demanded or penalty imposed or both for filing of appeal before the Commissioner (Appeal) or the Tribunal at the first stage, and 10% of the duty demanded or penalty imposed or both for filing second stage appeal before the Tribunal. The amount of pre-deposit payable would be subject to a ceiling of Rs 10 Crore. All pending appeals/stay application would be governed by the statutory provisions prevailing at the time of filing such stay applications/appeals. This new provisions would, mutatis mutandis, apply to Service Tax. This provision though would reduce the time for deposition of appeals as stay would no longer be a separate hearing, however, there is a cost attached to it which even a genuine tax payer and even in case of financial hardship would have to bear to get justice.
Section 83 is being amended to prescribe that the provisions of following sections of the Central Excise Act shall apply, mutatis mutandis, to service tax
This section has been introduce to expand the power of government to bring out a change in understanding by way of explanation in a notification or order at any time within one year of issue of notification or order, for clarifying the scope or applicability thereof and such explanation shall have effect from the date of issue of such notification or order.
This new section is being inserted in the Central Excise Act to stipulate that third party sources shall furnish periodic information, as specified, in the manner as may be prescribed.
This new section is being inserted in the Central Excise Act to prescribe that failure to provide information under section 15A of the Act would attract penalty as specified.
- Time bound issuance of Form A-2 by jurisdictional Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise has been prescribed. Time provided is 15 days
- Such authorisation is made valid from the date of its verification and in case of delay in submission of Form A-1, from the date of submission of Form A-1.
- Form A-1 has been made suitable document for non charge of Service Tax by service providers providing services to eligible SEZ units subject to submission of authorisation in Form A-2 later to such service providers. However, when such authorisation is not made available within a period of three months, the benefit so provided shall stand withdrawn.
- Determination of service being provided in SEZ is simplified by providing suitable explanation to this effect stating that a service shall be treated as used exclusively for the authorised operations if the service is received by the SEZ Unit or the Developer under an invoice in the name of such Unit or the Developer and the service is used only for furtherance of authorised operations in the SEZ. Thus, the test relating to physical performance of such services as often disputed by department shall stand relaxed.
- Condition of mentioning Service Tax registration number removed in case of full reverse charge liability
As said, that all big suprises come in small packages, this budget though appeared humble has brought in many changes. Though directly or indirectly all amendments aim to boost the revenue collection, certain clarificatory ones have also come to the benefit of assessee. However, with aim to tighten compliance, changes like mandatory stay deposit etc would hinder the path of free justice. All in all, this budget would help India Inc. to revisit their Service Tax compliances more thoroughly.