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78. |
Penalty for suppressing value of taxable service |
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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- |
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a) |
fraud; or |
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b) |
collusion; or |
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c) |
willful mis-statement; or |
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d) |
suppression of facts; or |
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e) |
contravention of any of the provisions of this
Chapter or the rules made there under with intent to
evade payment of service tax |
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The person, liable to pay such service tax or erroneous
refund, as determined under sub-section (2) of Section
73, shall also be liable to pay a penalty, in addition
to such service tax and interest thereon, if nay,
payable by him, which shall not be less than, but which
shall not exceed twice, the amount of service tax so not
levied, or paid or short levied or short paid or
erroneously refunded; |
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Provided that where such service tax as determined under
sub-section( 2) of section 73 and the interest payable
thereon under section (75), is paid within 30 days form
the date of communication of order of the Central Excise
officer determining such service tax, the amount of
penalty liable to be paid by such person shall be twenty
five per cent of the service tax so determined; |
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Provided further that the benefit of reduced penalty
under the first provision shall be available only if the
amount of penalty so determined has also been paid
within the period of thirty days referred to in that
proviso. |
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Provided also that in case where the service tax is
determined to be payable is reduced or increased by the
Commissioner (Appeals), the Appellate Tribunal or as the
case may be the Court, then, for the purposes of this
section, the service tax as reduced or increased, as the
case may be, shall be taken into account. |
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Provided also that in case where the service tax is
determined to be payable is reduced or increased by the
Commissioner (Appeals), the Appellate Tribunal or as the
case may be the Court, then, for the purposes of this
section, the service tax as reduced or increased, as the
case may be, shall be taken into account. |
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Explanation : For the removal of doubts, it is hereby
declared that - |
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1) |
the provisions of this section shall also apply to cases
in which an order determining the service tax under
sub-section (2) of section 73 relates to notices issued
prior to the date on which the Finance Bill, 2003
receives the ascent of the President; |
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2) |
the amount paid to the credit of Central Government
prior to the date of communication of the order referred
to in the first proviso or the fourth proviso shall be
adjusted against the total amount due from such person. |
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79. |
Omitted*** |
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80. |
Penalty not to be imposed in certain cases |
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Notwithstanding anything contained in the provisions of
section 76, section 77, or section 78, no penalty shall
be imposable on the assessee for any failure referred to
in said provisions, if the assessee proves that there
was reasonable cause for the said failure. |
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81. |
Omitted**** |
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82. |
Power to search premise |
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1) |
f the Commissioner of Central Excise has reason to
believe that any documents or book or things which in
his opinion will be any useful for or relevant to
proceedings under this Chapter are secreted in any
place, he may authorize any Assistant Commissioner of
Central Excise or, as the case may be, Deputy
Commissioner of Central Excise to search for and seize
or may himself search for and seize, such documents or
books or things. |
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2) |
The provisions of the Code of Criminal Procedure, 1973
(2 of 1974), relating to searches, shall, so far as may
be, apply or searches under this section as they apply
to searches under that Code. |
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83. |
Application of certain provisions of Act 1 of 1944
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The provisions of the following section of the Central
Excise Act, 1944 ( 1 of 1944), as in force from time to
time, shall apply, so far as may be, in relation to
service tax as they apply in relation to a duty of
excise: - |
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9C, 9D, 11, 11B, 11BB, 11C, 11D, 12, 12A, 12B. 12C, 12D,
12E, 14, 15, 33A, 35F to 35-O (both inclusive), 35Q, 36,
36A, 36B, 37A, 37B, 37C, 37D and 40. |
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83A |
Power of
adjudication.
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Where under this Chapter or the rules made thereunder
any person is liable to a penalty,such penalty may be
adjudged by the Central Excise Officer conferred with
such power as the Central Board of Excise and Customs
constituted under the Central Boards of Revenue
Act,1963, may, by notification in the Official Gazette,
specify; |
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84. |
Revision of orders by the Commissioner of Central Excise |
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1) |
The Commissioner of Central Excise may call for the
record of a proceeding under this Chapter in which an
adjudicating authority subordinate to him has passed any
decision or order and may make such inquiry or cause
such inquiry to be made and, subject to the provisions
of this Chapter, pass such order thereon as he thinks
fit. |
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2) |
No order, which is prejudicial to the assessee shall be
passed under this section unless the assessee has been
given an opportunity of being heard. |
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3) |
The Commissioner of Central Excise shall communicate the
order passed by him under sub-section (1) to the
assessee, such adjudicating authority and the Board. |
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4) |
No order under this section shall be passed by the
Commissioner of Central Excise in respect of any issue
if an appeal against such is pending before the
Commissioner of Central Excise (Appeals). |
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5) |
No order under this section shall be passed after the
expiry of two years from the date on which the order
sought to be revised has been passed. |
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85. |
Appeals to the Commissioner of Central Excise (Appeals). |
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1) |
Any person aggrieved by any decision or order passed by
an adjudicating authority
subordinate to the Commissioner of Central Excise may
appeal to the Commissioner of Central Excise (Appeals) |
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2) |
Every appeal shall be in the prescribed from and shall
be verified in the prescribed manner. |
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3) |
An appeal shall be presented within three months from
the date of receipt of the decision or order of such
adjudicating authority relating to service tax, interest
or penalty under this Chapter: |
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Provided that the Commissioner of Central Excise
(Appeals) may, if he is satisfied that the appellant was
prevented by sufficient cause from presenting the appeal
within the aforesaid period of three months, allow it to
be presented within a further period of three months. |
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4) |
The Commissioner of Central Excise (Appeals) shall hear
and determine the appeals and, subject to the provisions
of this Chapter, pass such orders as he thinks fit and
such orders may include an order enhancing the service
tax, interest or penalty : |
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Provided that an order enhancing the service tax,
interest or penalty shall not be made unless the person
affected thereby has been given a reasonable opportunity
of showing cause against such enhancement. |
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5) |
Subject to the provisions of this Chapter, in hearing
the appeals and making orders under this section, the
Commissioner of Central Excise (Appeals) shall exercise
the same powers and follow the same procedure as he
exercise and follows in hearing the appeals and making
orders under the Central Excise Act, 1944 (1 of 1944). |
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86. |
Appeals to Appellate Tribunal
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1) |
Any assessee aggrieved by an order passed by a
Commissioner of Central Excise under Section 73 or
Section 83 or section 84, or an order passed by a
Commissioner of Central Excise (Appeals) under section
85, may appeal to the Appellate Tribunal against such
order. |
|
2) |
The Board may, if it objects to any order passed by the
Commissioner of Central Excise under Section 73 or
Section 83 or section 84, direct the Commissioner of
Central Excise to appeal to the Appellate Tribunal
against the order. |
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2A) |
The Commissioner of Central Excise may, if he objects to
any order passed by the Commissioner of Central Excise
(Appeals) under section 85, direct any Central Excise
Officer to appeal on his behalf to the Appellate
Tribunal against the order]. |
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3) |
Every appeal under sub-section (1) [or sub-section (2)
or sub-section (2A)] shall be filed within three months
of the date on which the order sought to be appealed
against is received by the assessee, the Board or by the
Commissioner of Central Excise, as the case may be. |
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4) |
The Commissioner of Central Excise or any Central Excise
Officer subordinate to him or the assessee, as the case
may be, on receipt of a notice that an appeal against
the order of the Commissioner of Central Excise or the
Commissioner of Central Excise (Appeals) has been
preferred under sub-section (1) or sub-section (2) or
sub-section (2A) by the other party may, notwithstanding
that he may not have appealed against such order or any
part thereof, within forty-five days of the receipt of
the notice, file a memorandum of cross-objections,
verified in the prescribed manner, against any part of
the order of the Commissioner of Central Excise or the
Commissioner of Central Excise (Appeals), and such
memorandum shall be disposed of by the Appellate
Tribunal as if it were an appeal presented within the
time specified in sub-section (3). |
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5) |
The Appellate Tribunal may admit an appeal or permit the
filing of a memorandum of cross-objections after the
expiry of the relevant period referred to in sub-section
(3) or sub-section (4) if it is satisfied that there was
sufficient cause for not presenting it within that
period. |
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6) |
An appeal to the Appellate Tribunal shall be in the
prescribed form and shall be verified in the prescribed
manner and shall, irrespective of the date of demand of
service tax and interest or of levy of penalty in
relation to which the appeal is made, be accompanied by
a fee of,- |
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a) |
Where amount of service tax and interest demanded and
penalty levied by any Central Excise Officer in the case
to which the appeal relates is five lakh rupees or less,
one thousand rupees; |
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b) |
Where amount of service tax and interest demanded and
penalty levied by any Central Excise Officer in the case
to which the appeal relates more than five lakh rupees
but not exceeding fifty lakh rupees, five thousand
rupees |
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c) |
Where amount of service tax and interest demanded and
penalty levied by any Central Excise Officer in the case
to which the appeal relates is more than fifty lakh
rupees, ten thousand rupees |
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Provided that no fee shall be payable in case of an
appeal referred to in sub-section (2) or sub-section
(2A) or a memorandum of cross objections referred to in
sub-section (4). |
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6A) |
Every application made before the Appellate Tribunal,- |
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a) |
In an appeal for grant of stay or for rectification of
mistake or any other purpose; or |
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b) |
For restoration of appeal or an application, |
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Shall be accompanied by a fee of five hundred rupees: |
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Provided that no fee shall be payable in case of
an application filed by a Commissioner of Central Excise
or Assistant Commissioner of Central Excise or or Deputy
Commissioner of Central Excise, as the case may be,
under this sub-section |
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7)Subject to the provisions of this Chapter, in hearing
the appeal and making orders under this section, the
Appellate Tribunal shall exercise the same powers and
follow the same procedure as it exercise and follows in
hearing the appeals and making orders under the Central
Excise Act, 1944 (1 of 1944). |
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87. |
Recovery of any amount due to Central Government. |
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|
Where any amount payable by a person to the credit of
the Central Government under any of the provisions of
this Chapter or of the rules made thereunder is not
paid, the Central Excise Officer shall proceed to
recover the amount by one or more of the modes mentioned
below:— |
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a) |
the Central Excise Officer may deduct or may require any
other Central Excise Officer or any officer of customs
to deduct the amount so payable from any money owing to
such person which may be under the control of the said
Central Excise Officer or any officer of customs; |
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b) |
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i) |
the Central Excise Officer may, by notice in writing,
require any other person from whom money is due or may
become due to such person, or who holds or may
subsequently hold money for or on account of such
person, to pay to the credit of the Central Government
either forthwith upon the money becoming due or being
held or at or within the time specified in the notice,
not being before the money becomes due or is held, so
much of the money as is sufficient to pay the amount due
from such person or the whole of the money when it is
equal to or less than that amount; |
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ii) |
every person to whom a notice is issued under this
section shall be bound to comply with such notice, and
in particular, where any such notice is issued to a post
office, banking company or an insurer, it shall not be
necessary to produce any pass book, deposit receipt,
policy or any other document for the purpose of any
entry, endorsement or the like being made before payment
is made, notwithstanding any rule, practice or
requirement to the contrary; |
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iii) |
in a case where the person to whom a notice under
this section is sent, fails to make the payment in
pursuance thereof to the Central Government, he shall be
deemed to be an assessee in default in respect of the
amount specified in the notice and all the consequences
of this Chapter shall follow; |
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c) |
the Central Excise Officer may, on an authorisation by
the Commissioner of Central Excise, in accordance with
the rules made in this behalf, distrain any movable or
immovable property belonging to or under the control of
such person, and detain the same until the amount
payable is paid; and in case, any part of the said
amount payable or of the cost of the distress or keeping
of the property, remains unpaid for a period of thirty
days next after any such distress, may cause the said
property to be sold and with the proceeds of such sale,
may satisfy the amount payable and the costs including
cost of sale remaining unpaid and shall render the
surplus amount, if any, to such person; |
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d) |
the Central Excise Officer may prepare a certificate
signed by him specifying the amount due from such person
and send it to the Collector of the district in which
such person owns any property or resides or carries on
his business and the said Collector, on receipt of such
certificate, shall proceed to recover from such person
the amount specified thereunder as if it were an arrear
of land revenue. |
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88. |
*** |
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89. |
*** (Omitted) |
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90. |
**** |
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91. |
***** |
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92. |
****** |
|
93. |
Power to grant exemption from service tax |
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1) |
If the Central Government is satisfied that it is
necessary in the public interest so to do, it may, by
notification in the Official Gazette, exempt generally
or subject to such conditions as may be specified in the
notification, taxable service of any specified
description from the whole or any part of the service
tax levy able thereon. |
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2) |
If the Central Government is satisfied that it is
necessary in the public interest so to do, it may, by
special order in each case, exempt any taxable service
of any specified description from the payment of whole
or any part of the service tax levy able thereon, under
circumstances of exceptional nature to be stated in such
order.] |
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94. |
Power to make rules |
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1) |
The Central Government may, by notification in the
Official Gazette, make rules for carrying out the
provisions of this Chapter. |
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2) |
In particular, and without prejudice to the generality
of the foregoing power, such rules may provide for all
or any of the following matters, namely: - |
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a) |
collection and recovery of service tax under sections 66
and 68; |
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aa) |
the determination of amount and value of taxable service
under section 67; |
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b) |
the time and manner and the form in which application
for registration shall be made under sub-sections (1)
and (2) of section 69;
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c) |
the form, manner and frequency of the returns to be
furnished under sub-sections (1) and (2) of section 70; |
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cc) |
the manner of provisional attachment of property under
subsection (1) of section 73C; |
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ccc) |
publication of name of any person and particulars
relating to any proceeding under sub-section (1) of
section 73D; |
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d) |
the form in which appeal under section 85 or under
sub-section (6) of section 86 may be filed and the
manner in which they may be verified; |
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e) |
the manner in which the memorandum of cross objections
under sub-section (4) of section 86 may be verified; |
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ee) |
the credit of service tax paid on the services consumed
for providing a taxable service in case where the
services consumed and the service provided fall in the
same category of taxable service; |
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eee) |
the credit of service tax paid on the services consumed
or duties paid or deemed to have been paid on goods used
for providing a taxable service; |
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eeee) |
the manner of recovery of any amount due to the Central
Government under section 87; |
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f) |
provisions for determining export of taxable services;
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g) |
grant of exemption to, or rebate of service tax paid on,
taxable services which are exported out of India; |
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h) |
rebate of service tax paid or payable on the taxable
services consumed or duties paid or deemed to have been
paid on goods used for providing taxable services which
are exported out of India; |
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hh) |
ebate of service tax paid or payable on the taxable
services used as input services in the manufacturing or
processing of goods exported out of India under section
93A; |
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i) |
any other matter which by this Chapter is to be or may
be prescribed.; |
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3) |
The power to make rules conferred by this section shall
on the first occasion of the exercise thereof include
the power to give retrospective effect to the rules or
any of them from a date not earlier than the date on
which the provisions of this Chapter come into force. |
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4) |
Every rule made under this Chapter and every
notification issued under section 93 shall be laid, as
soon as may be, after it is made or issued, before each
House of Parliament, while it is in session for a total
period of thirty days which may be comprised in one
session or in two or more successive sessions, and if,
before the expiry of the session immediately following
the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or
notification or both Houses agree that the rule should
not be made or the notification should not be issued,
the rule or notification shall thereafter have effect
only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that rule or
notification. |
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95. |
Power to remove difficulties |
|
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1) |
If any difficulty arises in respect of implementing, or
assessing the value of, any taxable service incorporated
in this Chapter by the Finance Act,2002, the Central
Government may, by order published in the Official
Gazette, which is not inconsistent with the provisions
of this Chapter remove the difficulty: |
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Provided that no such order shall be made after the
expiry of a period of two years from the date on which
the provisions of the Finance Act,2002 incorporating
such taxable services in this Chapter come into force. |
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1A) |
f any difficulty arises in respect of implementing, or
assessing the value of, any taxable service incorporated
in this Chapter by the Finance Act, 2003, the Central
Government may, by order published in the Official
Gazette, not inconsistent with the provisions of this
Chapter, remove the difficulty :
Provided that no such order shall be made after the
expiry of a period of two years from the date on which
the Finance , 2003 incorporating such taxable services
in this chapter come into force.
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1B) |
If any difficulty arises in respect of implementing, or
assessing the value of, any taxable service incorporated
in this Chapter by the Finance (No. 2) Act, 2004, the
Central Government may, by order published in the
Official Gazette, not inconsistent with the provisions
of this Chapter, remove the difficulty :
Provided that no such order shall be made after the
expiry of a period of two years from the date on which
the Finance (No. 2) Bill, 2004 receives the assent of
the President. |
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1c) |
If any difficulty arises in respect of implementing,
classifying or assessing the value of any taxable
service incorporated in this Chapter by the Finance Act,
2006, the Central Government may, by order published in
the Official Gazette, not inconsistent with the
provisions of this Chapter, remove the difficulty:
Provided that no such order shall be made after the
expiry of a period of one year from the date on which
the Finance Bill, 2006 receives the assent of the
President. |
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2) |
Every order made under this section shall be laid, as
soon as may be after it is made, before each House of
the Parliament. |
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96. |
Consequential amendment |
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n the Economic Offences (Inapplicability of Limitation)
Act, 1974 (12 of 1974), in the Schedule, after entry 7
relating to the Central Excise Act, 1944 (1 of 1944),
the following entry shall be inserted, namely:- |
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7A. Chapter V of the Finance Act, 1994. |
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