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64. |
Extent, commencement and application. |
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1) |
This Chapter extends to the whole of India except the
State of Jammu and Kashmir. |
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2) |
It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint. |
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3) |
It shall apply to taxable services provided on or after
the commencement of this Chapter. |
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23. |
Definitions |
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In this Chapter, unless
the context otherwise requires, -- |
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1) |
"actuary" has the meaning
assigned to it in clause (1) of section 2 of the
Insurance Act, 1938 (4 of 1938); |
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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; |
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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; |
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3a) |
“aircraft”
has the meaning assigned to it in clause (1) of section
2 of the Aircraft Act, 1934 922 of 1934); |
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3b) |
“aircraft
operator” means any commercial concern which provides
the service of transport of goods by aircraft; |
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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) |
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3d) |
“airport
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 charge of management of an airport or a
civil enclave. |
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4) |
"air
travel agent" means any person engaged in providing any
service connected with the booking of passage for travel
by air; |
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5) |
"Appellate
Tribunal" means the Customs, Excise and Gold (Control)
Appellate constituted under section 129 of the Customs
Act, 1962 (52 of 1962); |
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6) |
"architect" means any person whose name is, for the time
being, entered in the register of architects maintained
under section 23 of the Architect 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; |
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7) |
"assessee"
means a person liable to pay the service tax and
includes his agent; |
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8) |
“
authorised dealer of foreign exchange” has the meaning
assigned to “authorised person” in clause © of section 2
of the Foreign Exchange Management Act, 1999 ( 42 of
1999); |
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9) |
"authorized service station" means any service station
or centre, authorized by any motor vehicle manufacturer,
to carry out any service, repair, reconditioning or
restoration of any motor car or two wheeled motor
vehicle manufactured by such manufacturer; |
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10) |
"banking"
shall have the meanings assigned to it in clauses (b) of
section 5 of the Banking Regulation Act, 1949 (10 of
1949), |
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11) |
"banking company" shall have the meanings assigned to it
in clauses (a) of section 45 A of the Reserve Bank of
India Act, 1934 (2 of 1934); |
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12) |
" banking
and other financial services" means, the following
services provided by a banking company or a financial
institution including a non-banking financial company or
any other body corporate, namely :- |
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(i) |
financial
leasing services including equipment leasing, and
hire-purchase by a body corporate; |
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(ii) |
credit
card services; |
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(iii) |
merchant
banking services; |
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(iv) |
securities
and foreign exchange (forex) broking; |
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(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; |
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(vi) |
advisory
and other auxiliary financial services including
investment and portfolio research and advice, advice on
mergers and acquisition and advice on corporate
restructuring and strategy; and |
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(vii) |
provision
and transfer of information and data processing; |
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(viii) |
Other
financial services, namely, lending; issue of pay order,
demand draft, cheque, letter of credit and bill of
exchange; providing bank guarantee, overdraft facility,
bill discounting facility, safe deposit locker, safe
vaults, operation of bank accounts; |
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13) |
"Board"
means the Central Board of Excise and Customs
constituted under the Central Boards of Revenue Act,
1963 (54 of 1963); |
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14) |
"body
corporate" shall have the meaning assigned to it in
clause (7) of Section 2 of the Companies Act, 1956 (1 of
1956); |
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15) |
"broadcasting " has the meaning assigned to it in clause
(c ) of section 2 of the Prasar Bharati (Broadcasting
Corporation of India) Act, 1990 (25 of 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 or permitting the
rights to receive any form of communication like sign,
signal, writing, picture, image and sounds of all kinds
by transmission of electromagnetic waves through space
or through cables, direct to home signals or by any
other means to cable operator, including multisystem
operator or any other person 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; |
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16) |
"broadcasting agency or organization" means any agency
or organization engaged in providing service in relating
to broadcasting in any manner and, in the case of a
broadcasting agency or organization, 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
broadcasting charges on behalf of the said agency or
organisation; |
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17) |
"beauty
treatment" includes hair cutting, hair dyeing, hair
dressing, face and beauty treatment, cosmetic treatment,
manicure, pedicure or counseling services on beauty,
face care or make up or such other similar services ; |
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18) |
"beauty
parlour" means any establishment providing beauty
treatment services; |
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19) |
“business
auxiliary service” means any service in relation to,- |
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(i) |
Promotion
or marketing or sale of goods produced or provided by or
belonging to the client; or |
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(ii) |
Promotion
or marketing of service provided by the client; or |
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(iii) |
Any
customer care service provided on behalf of the client;
or |
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(iv) |
Procurement of goods or services, which are inputs for
the client; or
Explanation: For the removal of doubts, it is
hereby declared that for the purposes of this
sub-clause, “inputs” means all goods or services
intended for use by the client. |
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(v) |
Production
and processing of goods for, on behalf of the client; or |
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(vi) |
Provision
of service on behalf of the client; or |
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(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, payments, maintenance
of accounts and remittance, inventory management,
evaluation or development of prospective customer or
vendor, public relations 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 (f) of section 2 of the Central Excise
Act, 1944 (1 of 1944).
Explanation:- For the removal of doubts, it is
hereby declared that for the purposes of this clause,—
(a) "commission agent" means any person who acts on
behalf of another person and causes sale or purchase of
goods, or provision or receipt of services, for a
consideration,
and includes any person who, while acting on behalf of
another person—
(i) deals with goods or services or documents of title
to such goods or services; or
(ii) collects payment of sale price of such goods or
services; or
(iii) guarantees for collection or payment for such
goods or services; or
(iv) undertakes any activities relating to such sale or
purchase of such goods or
services;
(b) "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;
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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, intend for the growth in
business of the producer or provider of such product or
service, as the case may be; |
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20) |
"cab"
means a motor cab or maxi cab; |
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21) |
"cable
operator" shall have the meaning assigned to it in
clause (aa) of section 2 of the Cable Television
Networks (Regulation) Act, 1995 (7 of 1995); |
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22) |
"cable
service" shall have the meaning assigned to it in clause
(b) of section 2 of the Cable Television Networks
(Regulation) Act, 1995 (7 of 1995); |
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23) |
"cargo
handling service" means loading, unloading, packing or
unpacking of cargo and includes cargo handling services
provided for freight in special containers or for
non-containerized freight, services provided by a
container freight terminal or nay other freight
terminal, for all modes of transport and cargo handling
services incidental to freight, but does not include
handling of export cargo or passenger baggage or mere
transportation of goods; |
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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 of occasion; |
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(a) |
“ 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); |
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(b) |
cleaning
activity" means cleaning, including specialised cleaning
services such as
disinfecting, exterminating or sterilising of objects or
premises, of—
(i) commercial or industrial buildings and premises
thereof; or
(ii) factory, plant or machinery, tank or reservoir of
such commercial or industrial buildings and premises
thereof,
but does not include such services in relation to
agriculture, horticulture, animal husbandry or dairying; |
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(25) |
"clearing
and forwarding" 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; |
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(a) |
club or
association" means any person or body of persons
providing services, facilities or advantages, for a
subscription or any other amount, to its members, but
does not include—
(i) any body established or constituted by or under any
law for the time being in force; or
(ii) any person or body of persons engaged in the
activities of trade unions, promotion of agriculture,
horticulture or animal husbandry; or
(iii) any person or body of persons engaged in any
activity having objectives which are in the nature of
public service and are of a charitable, religious or
political nature; or
(iv) any person or body of persons associated with press
or media; |
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(b) |
commercial
or industrial construction service" means—
(a) construction of a new building or a civil structure
or a part thereof; or
(b) construction of pipeline or conduit; or
(c) completion and finishing services such as glazing,
plastering, painting, floor and wall
tiling, wall covering and wall papering, wood and metal
joinery and carpentry, fencing and
railing, construction of swimming pools, acoustic
applications or fittings and other similar
services, in relation to building or civil structure; or
(d) repair, alteration, renovation or restoration of, or
similar services in relation to, building
or civil structure, pipeline or conduit,
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 such services provided in respect
of roads, airports, railways, transport terminals,
bridges, tunnels and dams;'; |
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(26) |
“
commercial training or coaching” means any training or
coaching provided by a commercial training or coaching
centre; |
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(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
and 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 nay educational qualification recognized by
law for time being in force; |
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(28) |
Omitted |
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(29) |
“
commissioning or installation agency” means any agency
providing service in relation to erection, commissioning
or installation; |
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(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); |
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(30a) |
“construction
of complex" means—
(a) construction of a new residential complex or a part
thereof; or
(b) completion and finishing services in relation to
residential complex such as glazing,
plastering, painting, floor and wall tiling, wall
covering and wall papering, wood and metal
joinery and carpentry, fencing and railing, construction
of swimming pools, acoustic
applications or fittings and other similar services; or
(c) repair, alteration, renovation or restoration of, or
similar services in relation to, residential
complex;
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(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; |
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(32) |
"convention" means a formal meeting or assembly which is
not open to the general public, and dose not include a
meeting or assembly the principal purpose of which is to
provide any type of amusement, entertainment or
recreation; |
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(33) |
"courier
agency" means a commercial concern engaged in the
door-to-door transportation of time –sensitive
documents, goods or articles utilising the services of a
person, either directly or indirectly, to carry or
accompany such documents, goods or articles; |
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(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; |
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(35) |
"customs
house agent" means a person licensed, temporarily or
otherwise, under the regulations made under sub-section
(2) of section 146 of the Customs Act,1962 (52 of 1962); |
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(36) |
"data" has
the meaning assigned to it in clause (o) of sub-section
(1) of section 2 of the Information Technology Act, 2000
(21 of 2000); |
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(36a) |
dredging"
includes removal of material including, silt, sediments,
rocks, sand,
refuse, debris, plant or animal matter in any
excavating, cleaning, deepening, widening or
lengthening, either permanently or temporarily, of any
river, port, harbour, backwater or estuary; |
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(37) |
"dry
cleaning" includes dry cleaning of apparels, garments or
other textile, fur or leather articles; |
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(38) |
"dry
cleaner" means any commercial concern providing service
in relation to dry cleaning; |
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(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); |
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(39a) |
erection,
commissioning or installation" means any service
provided by a
commissioning and installation agency, in relation to,—
(i) erection, commissioning or installation of plant,
machinery or equipment; or
(ii) installation of—
(a) electrical and electronic devices, including wirings
or fittings therefor; or
(b) plumbing, drain laying or other installations for
transport of fluids; or
(c) heating, ventilation or air-conditioning including
related pipe work, duct work and sheet metal work; or
(d) thermal insulation, sound insulation, fire proofing
or water proofing; or
(e) lift and escalator, fire escape staircases or
travelators; or
(f) such other similar services; |
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(40) |
"event
management" means any service provided in relation to
planning, promotion, organizing or presentation of any
arts, entertainment, business, sports or any other event
and includes any consultation provided in this regard; |
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(41) |
"event
manager" means any person who is engaged in providing
any service in relation to event management in any
manner; |
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(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; |
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(43) |
"fashion
designing" includes any activity relating to
conceptualizing, 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; |
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(44) |
"fashion
designer" means any person engaged in providing service
in relation to fashion designing; |
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(45) |
"financial
institution" has the meaning assigned to it in clause
(c) of section 45-I of the Reserve Bank of India Act,
1934 (2 of 1934); |
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(46) |
“foreign
exchange broker” includes any authorized dealer in
foreign exchange; |
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(46a) |
“forward
contract” has the meaning assigned to it in clause 9c)
of section 2 of the Forward Contracts (Regulation) Act,
1952 ( 74 of 1952); |
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(47) |
“franchise" means an agreement by which the franchisee
is granted representational right to sell or manufacture
goods or to provide service or undertake any process
identified with franchisor, whether or not a trade mark,
service mark, trade name or logo or any such symbol, as
the case may be, is involved; |
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(48) |
“franchisor” mean a person who enters into franchise
with a franchisee and includes any associate of
franchisor or a person designated by franchiser to enter
into franchise on his behalf and the term “franchisee”
will be constued accordingly; |
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(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); |
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(50) |
"goods"
has the meaning assigned to it in clause (7) of section
2 of the sale of Goods Act, 1930 (3 of 1930); |
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(a) |
“goods
carriage” has the meaning assigned to it in clause 914)
of section 2 of the Motor Vehicles Act, 1988 (59 of
1988); |
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(b) |
“ goods
transport agency” means any commercial concern which
provides service in relation to transport of goods by
road and issues consignment notes, by whatever name
called; |
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(51) |
"health
club and fitness service" means service for physical
well-being such as, sauna and steam bath, Turkish bath,
solarium, spas, reducing or slimming salons, gymnasium,
yoga, meditation, massage (excluding therapeutic
massage)or any other like service; |
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(52) |
"health
club and fitness centre" means any establishment,
including a hotel or resort, providing health and
fitness service; |
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(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); |
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(54) |
"Insurance
Agent" has the meaning assigned to it in clause (10) of
section 2 of the Insurance Act, 1938 (4 of 1938); |
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(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 and includes risk assessment, claim settlement,
survey and loss assessment; |
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(a) |
“intellectual property right” means any right to
intangible property, namely, trade marks, patents or any
similar intangible property, under any law for the time
being in force, but does not include copyright; |
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(b) |
“intellectual
property service” means,-
(a) transferring temporarily; or
(b) permitting the use or enjoyment of ,
any intellectual property right; |
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(56) |
"intermediary" or insurance intermediary" has the
meaning assigned to it in sub-clause (f) of clause (1)
of section 2 o the Insurance Regulatory and Development
Authority Act, 1999 (41 of 1999); |
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(57) |
“internet
café” means a commercial establishment providing
facility for accessing internet; |
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(58) |
"insurer"
means nay person carrying on the general insurance
business in India; |
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(59) |
"Interior
decorator" means any person engaged, whether directly or
indirectly, in the business of providing by way of
advice, consulting, technical assistance or in any other
manner, services related to planning, design or
beautification of space, whether man-made or otherwise
and includes a landscape designer; |
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(60) |
"leased
circuit" means a dedicated link provided between two
fixed locations for exclusive use of the subscriber and
includes a speech circuit, data circuit or a telegraph
circuit; |
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(61) |
"life
insurance business" has the meaning assigned to it in
clause (11) of section 2 of the Insurance Act, 1938 (4
of 1938); |
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(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; |
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(63) |
"magnetic
storage device" include wax blanks, discs or blanks
strips or films for the purpose of original sound
recording; |
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(63a) |
mailing
list compilation and mailing" means any service in
relation to—
(i) compiling and providing list of name, address and
any other information from any source; or
(ii) sending document, information, goods or any other
material in a packet, by whatever name called, by
addressing, stuffing, sealing, metering or mailing,
for, or on behalf of, the client; |
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(64) |
“maintenance
or repair” means any service provided by,-
(i) any person under a contract or an agreement; or
(ii) a manufacturer or any person authorised by him,
in relation to,—
(a) maintenance or repair including reconditioning or
restoration, or servicing of any goods
or equipment, excluding motor vehicle; or
(b) maintenance or management of immovable property
|
|
|
(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
conceptualizing, devising, development, modification,
rectification or upgradation of any working system of
any organization. |
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(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 consideration for
organizing any official, social or business function; |
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(67) |
"Mandap
keeper" means a person who allows temporary occupation
of a Mandap for consideration for organizing any
official, social or business function; |
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(68) |
"manpower
recruitment or supply agency" means any commercial
concern engaged in providing any service, directly or
indirectly, in any manner for recruitment or supply of
manpower, temporarily or otherwise, to a client; |
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(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 customized and syndicated research
services; |
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(70) |
"maxi cab"
has the meaning assigned to it in clause (22) of section
2 of the Motor Vehicles Act, 1988 (59 of 1988); |
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(71) |
"motor cab" has the meaning assigned to it in clause
(25) of section 2 of the Motor Vehicle Act, 1988 (59 of
1988) |
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(72) |
"motor
car" has the meaning assigned to it in clause (26) of
section 2 of the Motor Vehicle Act, 1988 (59 of 1988) |
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(73) |
"motor
vehicle" has the meaning assigned to it in clause (28)
of section 2 of the Motor Vehicle Act, 1988 (59 of 1988) |
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(74) |
"non-banking financial company" has the meaning assigned
to it in clause (f) of section 45-I of the Reserve Bank
of India Act, 1934 (2 of 1934); |
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|
(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; |
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|
(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
services in relation to opinion poll; |
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(76) |
“other
port” has the meaning assigned to “port” in clause (4)
of section 3 of the Indian Ports Act, 1908 ( 15 of
1908), but does not include the port defined in clause
(81); |
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|
(76a) |
“outdoor
caterer” means a caterer engaged in providing services
in connection with catering at a place other than his
own, but including a place providedby way of tenancy or
otherwise by the person receiving such services; |
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|
(76b) |
“packaging
activity" means packaging of goods including pouch
filling, bottling, labeling or imprinting of the
package, but does not include any packaging activity
that amounts to 'manufacture' within the meaning of
clause (f) of section 2 of the Central Excise Act, 1944; |
|
|
(77) |
"pager"
means an instrument, apparatus or appliance which is a
non-speech, one way personal calling system which alert
and has the capability of receiving, storing and
displaying numeric or alpha-numeric message; |
|
|
(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, 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 light fittings, floor
coverings and other articles for use therein; |
|
|
(78) |
"photography" includes still photography, motion picture
photography, laser photography, aerial photography and
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, 1963 (4 of 1938);
|
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|
(81) |
"port" has
the meaning assigned to it in clause (q) of section 2 of
the Major Port Trust Act, 1963 (38 of 1963); |
|
|
(82) |
"port
services" means any service rendered by a port or any
person authorized by the 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
provision of the Chartered Accountants Act, 1949 (38 of
1949) and includes any concern engaged in rendering
services in the field of Chartered accountancy; |
|
|
(84) |
"practicing cost accountant" means a person who is
member of the Institute of Cost 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; |
|
|
(85) |
"practicing 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; |
|
|
(86a) |
“programme” means any audio or visual matter, live or
recorded, which is intended to be disseminated by
transmission or electromagnetic 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 commercial 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; |
|
|
(89a) |
“recognized association” has the meaning assigned to it
in clause (j) of section 2 of the Forward Contracts
(Regulation) Act, 1952 9 74 of 1952); |
|
|
(89b) |
“registered association” has the meaning assigned to it
in clause (f) of section 2 of the Forward Contracts
(Regulation) Act, 1952 9 74 of 1952); |
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|
(90) |
"recognized 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; |
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|
(91a) |
residential complex" means any complex comprising of—
(i) a building or buildings, having more than twelve
residential units;
(ii) a common area; and
(iii) any one or more of facilities or services such as
park, lift, parking space, community hall, common water
supply or effluent treatment system,
located within a premises and the layout of such
premises is approved by an authority under any law for
the time being in force, but does not include a complex
which is constructed by a person directly engaging any
other person for designing or planning of the layout,
and the construction of such complex is intended for
personal use as residence by such person.
Explanation.—For the removal of doubts, it is hereby
declared that for the purposes of this clause,—
(a) "personal use" includes permitting the complex for
use as residence by another person on rent or without
consideration;
(b) "residential unit" means a single house or a single
apartment intended for use as a place of residence; |
|
|
(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 organization, 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, 1956 (42 of 1956); |
|
|
(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; |
|
|
(97a) |
site
formation and clearance, excavation and earthmoving and
demolition" includes,—
(i) drilling, boring and core extraction services for
construction, geophysical, geological or similar
purposes; or
(ii) soil stabilization; or
(iii) horizontal drilling for the passage of cables or
drain pipes; or
(iv) land reclamation work; or
(v) contaminated top soil stripping work; or
(vi) demolition and wrecking of building, structure or
road,
but does not include such services provided in relation
to agriculture, irrigation, watershed development and
drilling, digging, repairing, renovating or restoring of
water sources or water bodies; |
|
|
(98) |
"sound
recording" means recording of sound on any media or
device including magnetic storage device, and includes
services relating to recording of sound in any manner
such as sound cataloguing, storing of sound and sound
mixing or re-mixing or any audio post-production
activity; |
|
|
(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, --
(a) to perform any service in connection with the ship’s
husbandry or dispatch including the rendering of
administrative work related thereto; or
(b) to book, advertise or canvass for cargo for or on
behalf of a shipping line; or
(c) to provide container feeder services for or on
behalf of a shipping line;
|
|
|
(101) |
"stock
broker" means a stock broker who has either made an
application for registration or is registered as a
stock-broker 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) |
Omitted |
|
|
(104) |
"subscriber" means a person to whom any service of a
telephone connection or a facsimile or a leased circuit
or pager or a telegraph or a telex has been provided by
the telegraph authority; |
|
|
(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; |
|
|
(104b) |
"survey
and map-making" means geological, geophysical or any
other prospecting,
surface, sub-surface or aerial surveying or map-making
of any kind, but does not include survey and exploration
of mineral; |
|
|
(105) |
"taxable
service" means any service provided or to be provided -
(a) to an investor, by a stock-broker in connection with
the sale or purchase of securities listed on a
recognized 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 businesses;
(e) to a client, by an advertising agency in relation to
advertisement, in any manner;
(f) to a customer, by 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;
(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 or supply
agency in relation to the recruitment or supply of
manpower, temporarily or otherwise, 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 elation to the
use of Mandap in any manner including the facilities
provided or to be provided to the client in relation to
such use and also the services, if any provided or to be
provided as a caterer;
(n) to any person, by a tour operator in relation to a
tour;
(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
manmade or otherwise, in any manner;
(r) to a client by a management consultant in connection
with the management of any organization, 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 technocrat or any
science or technology institution or organization, 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 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 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
organization in relation to broadcasting, in any manner
and, in the case of 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 programmes or collecting the
broadcasting charges on behalf of the said agency", the
words " collecting the broadcasting charges or
permitting the rights to receive any form of
communication like sign, signal, writing, picture, image
and sounds of all kinds by transmission of
electromagnetic waves through space or through cables,
direct to home signals or by any other means to cable
operator, including multisystem operator or any other
person 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 taxable service in
relation to broadcasting, even if the encryption of the
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;
(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, repair, reconditioning or
restoration of motor cars, light motor vehicles; in any
manner
(zp) Omitted.
(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) 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 in relation to the risk cover in life
insurance;
(zy) to a policy holder 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 ot storage and warehousing of goods;
and the term "service provider" shall be construed
accordingly;
(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 erection, commissioning and
installation agency in relation to commissioning or
installation;
(zze) to a franchisee, by the franchisor in relation to
franchise;
(zzf) to any person, by an internet café in relation to
access of internet;
(zzg) to a customer, by a person in relation to
maintenance or repair;
(zzh) to a person, by a technical inspection and
analysis agency, in relation to technical testing and
analysis;
(zzi) to a person, by a technical inspection and
certification agency, in relation to technical
inspection and certification;
(zzj) Omitted
(zzk) to a customer, by a foreign exchange broker other
than those brokers in relation to banking and other
financial services referred to in sub-clause (zm);
(zzl) to any person, by other port or any person
authorised by that port in relation to port services, in
any manner;
(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 operaot, in relation
to transport of goods by aircraft;
(zzo) to an exhibitor, by the organizer 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 commercial or industrial 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 pandal or shamiana contractor in
relation to a pandal or shamiana in any manner and also
includes the services, if any, provided or to be
provided as a caterer;
(zzx) to a customer, by a travel agent, in relation to
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;
(zzz) to any person, by any other person, in relation to
transport of goods other than water, through pipeline or
other conduit;
(zzza) to any person, by any other person, in relation
to site formation and clearance, excavation and
earthmoving and demolition and such other similar
activities;
(zzzb) to any person, by any other person, in relation
to dredging;
(zzzc) to any person, by any other person, other than by
an agency under the control of, or authorised by, the
Government, in relation to survey and map-making;
(zzzd) to any person, by any other person, in relation
to cleaning activity;
(zzze) to its members, by any club or association in
relation to provision of services, facilities or
advantages for a subscription or any other amount;
(zzzf) to any person, by any other person, in relation
to packaging activity;
(zzzg) to any person, by any other person, in relation
to mailing list compilation and mailing;
(zzzh) to any person, by any other person, in relation
to construction of complex;
Explanation.—For the removal of doubts, it is hereby
declared that where any service provided or to be
provided by a person, who has established a business or
has a fixed establishment from which the service is
provided or to be provided, or has his permanent address
or usual place of residence, in a country other than
India and such service is received or to be received by
a person who has his place of business, fixed
establishment, permanent address or, as the case may be,
usual place of residence, in India such service shall be
deemed to be taxable service for the purposes of this
clause;
and the term “service provider” shall construed
accordingly; |
|
|
(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 testing in
relation to human beings or animal; |
|
|
(107) |
"technical
testing and analysis agency" means any agency or person
engaged in technical testing and analysis; |
|
|
(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 any immovable property qualifies or
maintains the specified standards including
functionality, quality, utility or safety or any other
characteristic or parameter, but does not include any
service in relation to inspection and certification of
pollution levels; |
|
|
(109) |
"technical
testing and certification agency" means any agency or
person engaged in technical testing 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 ti 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 (1) 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); |
|
|
(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 2 of the Securities and Exchange Board of
India (Underwriters) Rule, 1993; |
|
|
(118) |
"vessel"
has the meaning assigned to it in clause (z) of section
2 of the Major Port Trust Act, 1963 (38 of 1963); |
|
|
(119) |
"video production agency" means any professional
videographer or any commercial concern engaged in the
business of rendering services relating to video-tape
production; |
|
|
(120) |
video-tape
production" means the process of any recording of any
programme, event
or function on a magnetic tape or on any other media or
device and includes services relating thereto such as
editing, cutting, colouring, dubbing, title printing,
imparting special effects, processing, adding, modifying
or deleting sound, transferring from one media or device
to another, or undertaking any video post-production
activity, 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. |
|
23A. |
Classification of taxable services |
|
|
1) |
For the purposes of this chapter classification of
taxable services shall be determined according to terms
of sub-clauses of clause (105) of section 23; |
|
2) |
when for any reason, a taxable service is, prima facie,
classifiable under two or more sub-clauses or clause
(105) of section (23), classification shall be affected
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 can not be classified in the
manner specified in clause (a) shall be classified as if
it consisted in the service which gives them their
essential character; |
|
c) |
when a service can not be classified in the manner
specified in clause (a) or clause (b), it shall be
classified under sub-clause which occurs first among the
sub-clauses which equally merit consideration; |
|
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 with in sub-clauses (a) to
(z) and (za) to (zz) and clause (zza) to (zzzh)of clause
(105) of section 23 and collected in such manner as may
be prescribed; |
|
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 of such service provided or to be provided by
him. |
|
|
Explanation. 1. – for the removal of doubts, it is
hereby declared that the value of a taxable service, as
the case may be, includes, --
(a) the aggregate of commission or brokerage charged by
a broker on the sale of 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 telegraphic 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 insurance intermediary or
insurance agent from the insurer;
(f) the reimbursement received by the authorised service
station from manufacturer for carrying out any service
of any motor car, maxi-cab or two wheeled motor vehicle
manufactured by such manufacturer, and
(g) the commission or any amount received by the rail
travel agent from the Railways or the customer, |
|
|
but does
not include, -
(i) initial deposit made by the subscriber at the time
of application for telephone connection or pager or
facsimile or telegraph or telex or leased circuit
(ii) the cost of unexposed photography films, unrecorded
magnetic tape or such other storage devices if any, sold
to the client during the course of providing service;
(iii) the cost of parts or accessories, if any, sold to
the customer during the course of service or repair of
motor cars or two wheeled motor vehicles;
(iv) the airfare collected by air travel agent in
respect of service provided by him; and
(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; and
(vii) the cost of parts or other material, if any, sold
to the customer during the course of providing
commissioning or installation.
|
|
|
Explanation 2.- Where the gross amount charged by a
service provider is inclusive of service tax payable,
the value of taxable service shall be the amount as with
the addition of tax payable, is equal to the gross
amount charged.
|
|
|
Explanation 3.—For the removal of doubts, it is
hereby declared that the gross amount charged for the
taxable service shall include any amount received
towards the taxable service before, during or after
provision of such service. |
|
68. |
Payment of Service Tax |
|
a) |
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. |
|
b) |
Notwithstanding anything contained in sub-section (1),
in respect of any taxable service notified by the
Central Govt. in the Official Gazette, the service tax
thereon shall 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. |
|
69. |
Registration |
|
a) |
Every person liable to pay the service tax under this
chapter or the rules made there under shall, within such
time and in such manner and in such form as may be
prescribed, make an application for registration to the
Superintendent of Central Excise. |
|
b) |
The Central
Government may, by notification in the Official Gazette,
specify such other person or class of persons, who shall
make an application for registration within such time
and in such manner and in such form as may be
prescribed; |
|
70. |
Furnishing of returns |
|
a) |
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. |
|
b) |
The person or class of persons notified under
sub-section (2) of section 69, shall furnish to the
Superintendent of the Central Excise, a return in such
form and in such manner and at such frequency as may be
prescribed; |
|
71. |
Omitted |
|
71A. |
Filing of returns by certain customers |
|
|
Notwithstanding anything contained in the provisions of
section 69 and section 70, the provisions thereof shall
not apply to a person referred to in the provisio to
sub-section (1) of section 68 fir the filing of return
in respect of service tax for the respective period and
service specified therein and such person shall furnish
return to the Central Excise Officer within six months
from the day on which the Finance BIll 2003 receives the
assent of President in the prescribed manner on the
basis of the self assessment of the service tax and the
provisions of section 71 shall apply accordingly.
. [inserted for the period 16.7.97 to 16.10.98 by
Section 158 of Finance Act,2003 and shall have effect
and be deemed always to have had effect from 16.7.97.] |
|
72. |
Omitted* |
|
73. |
Recovery of service tax not levied or paid or short
levied or short paid or erroneously refunded |
|
1) |
Where any service tax has not been levied or paid or has
been short levied or short paid or erroneously refunded,
Central Excise Officer, within one year from the
relevant date, serve notice on the person chargeable
with service tax which has not been levied or paid or
which has been short levied or short paid or the person
to whom such tax refund has been erroneously 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) |
willful mis-statement; or |
|
|
d) |
suppression of facts; or |
|
|
e) |
contravention of any of the provisions of this Chapter
or the rules made thereunder with intent to evade
payment of service tax |
|
|
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. |
|
|
1A) Where any service tax has not been levied or
paid or has been short-levied or shortpaid or
erroneously refunded, by reason of fraud, collusion or
any wilful misstatement or suppression of facts, or
contravention of any of the provisions of this Chapter
or the rules made thereunder, with intent to evade
payment of service tax, by such person or his agent, to
whom a notice is served under the proviso to sub-section
(1) by the Central Excise Officer, such person or agent
may pay service tax in full or in part as may be
accepted by him, and the interest payable thereon under
section 75 and penalty equal to twenty-five per cent, of
the service tax specified in the notice or the service
tax so accepted by such person within thirty days of the
receipt of the notice. |
|
2) |
The Central Excise Officer shall, after considering the
representation, if any, made by the person on whom
notice is served under sub-section (1), determine the
amount of service tax due from such person (not being in
excess of the amount specified in the notice) and
thereupon such person shall pay the amount so
determined.
Provided that where such person has paid the service tax
in full together with interest and penalty under
sub-section (1A), the proceedings in respect of such
person and other persons to whom notices are served
under sub-section (1) shall be deemed to be concluded:
Provided further that where such person has paid service
tax in part along with interest and penalty under
sub-section (1A), the Central Excise Officer shall
determine the amount of service tax or interest not
being in excess of the amount partly due from such
person. |
|
3) |
where any service tax has escaped assessment or has been
under assessed or service tax has not been paid or has
been short paid or erroneously refunded, the person
chargeable with service tax, may pay the amount of tax,
chargeable or erroneously refunded, on the basis of his
own ascertainment of such tax or on the basis of tax
ascertained by Central Excise officer before service of
notice on him under sub-section (1) in respect of
service tax, and inform the Central Excise Officer of
such payment in writing, who, on receipt of such
information shall not serve any notice under sub-section
(1) in respect of service tax so paid; |
|
|
Provided that the Central Excise officer 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
Central Excise officer shall proceed to recover such
amount in the manner specified in this section and the
period of “one year” referred to sub-section (1) shall
be counted from the date of receipt of such information
of payment. |
|
|
Explanation : For removal of doubts it is hereby
declared that 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, if any, as may be determined by the Central
Excise officer, 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 short levied or short paid or erroneously refunded by
reason of- |
|
|
a) |
fraud; or |
|
|
b) |
collusion; or |
|
|
d) |
willful mis-statement; or |
|
|
e) |
suppression of facts; or |
|
|
f) |
contravention of any of the provisions of this Chapter
or the rules made thereunder with intent to evade
payment of service tax |
|
5) |
The provisions of sub-section (3) shall not apply in 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 escaped
assessment or has been under-assessed or has not been
paid or has been 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 assesses, the date on which such
return is so filed; |
|
|
|
b) |
where no periodical return as aforesaid is filed, the
last date on which such return is to be filed under the
said rules; |
|
|
|
c) |
in any other case, the date on which the service tax is
to be paid under this Chapter or the rules made
thereunder; |
|
|
ii) |
in a case where the service tax is provisionally
assessed under this 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 Central Excise officer who passed any order
under the provisions of this Chapter may, within two
years of the date on which such order was passed, amend
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), Central Excise
officer 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
Central Excise officer 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 an
assessment or reducing a refund or otherwise increasing
the liability of the assessee, shall not be made under
this section unless the Central Excise officer 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 Central Excise officer
concerned.
|
|
6) |
Subject to the other provisions of this Chapter where
any such amendment has the effect of reducing the
liability of an assessee or increasing the refund, the
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
liability of an assessee or reducing the refund already
made, the Central Excise officer shall make an order
specifying the sum payable by the assessee and the
provisions of this Chapter shall apply accordingly. |
|
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 at such rate of
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. |
Omitted** |
|
76. |
Penalty for failure to pay service tax |
|
|
– Any person, liable to pay service tax in accordance
with the provisions of section 68 or the rules made
under this Chapter, who fails to pay such tax, shall
pay, in addition to such tax and the interest on that
tax in accordance with the provisions of section 75, a
penalty which shall not be less than two hundred rupees
for every day during which such failure continues or at
the rate of two per cent, of such tax, per month,
whichever is higher, starting with the first day after
the due date till the date of actual payment of the
outstanding amount of service tax:
Provided that the total amount of the penalty payable in
terms of this section shall not exceed the service tax
payable.
Illustration
X, an assessee, fails to pay service tax of Rs. 10 lakhs
payable by 5th March. X pays the amount on 15th March.
The default has continued for 10 days. The penalty
payable by X is computed as follows:—
2% of the amount of default for 10 days = 2 x 10,00,000
x 10/31 = Rs. 6,451.61
Penalty calculated @ Rs. 200 per day for 10 days = Rs.
2,000
Penalty liable to be paid is Rs. 6,452.00.
|
|
77. |
Penalty for contravention of any provision for which no
penalty is provided |
|
|
Whoever contravenes any of the provisions of this
Chapter or nay 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.
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