Service Tax Legislation - Finance Act, 1994
Chapter V of the Finance Act, 1994 (* amendments made vide Finance Act, 2007) Service Tax
64. Extent, commencement and application.
(1) This Chapter
extends to the whole of
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
(3) It shall apply to taxable services provided on or after the commencement of this
.
65. Definitions. -
In this Chapter, unless the context otherwise requires, --
(1) "actuary" has the meaning assigned to it in clause (1) of section 2 of the Insurance Act, 1938 (4 of 1938);
(2) "advertisement" includes any notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by means of light, sound, smoke or gas;
(3) "advertising agency" means any person engaged in providing any service connected with the making, preparation, display or exhibition of advertisement and includes an advertising consultant;
(3a) “aircraft” has the meaning assigned to it in clause (1) of section 2 of the Aircraft Act, 1934 (22 of 1934);
(3b) “aircraft operator” means any person which provides the service of transport of goods or passengers by aircraft;
(3c) “airport” has the meaning assigned to it in clause (b) of section 2 of the Airports Authority of India Act, 1994 (55 of 1994);
(3d) “airports authority” means the Airports Authority of India constituted under section 3 of the Airports Authority of India Act, 1994 (55 of 1994) and also includes any person having the charge of management of an airport or a civil enclave;
(4) "air travel agent" means any person engaged in providing any service connected with the booking of passage for travel by air;
(5) "Appellate Tribunal" means the Customs, Excise and Gold (Control) Appellate constituted under section 129 of the Customs Act, 1962 (52 of 1962);
(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 person engaged in any manner, whether directly or indirectly, in rendering services in the field of architecture;
(7) "assessee" means a person liable to pay the service tax and includes his agent;
(7a) “auction of property” includes calling the auction or providing a facility, advertising or illustrating services, pre-auction price estimates, short-term storage services, repair or restoration services in relation to auction of property;’;
(8) "Authorised dealer of foreign exchange" has the meaning assigned to "authorised person" in clause (c) of Section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999);
(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;
(9a) “automated teller machine” means an interactive automatic machine designed to
dispense cash, accept deposit of cash, transfer money between bank accounts and facilitate other financial transactions;
(9b) “automated teller machine operations, maintenance or management service” means any service provided in relation to automated teller machines and includes site selection, contracting of location, acquisition, financing, installation, certification, connection, maintenance, transaction processing, cash forecasting, replenishment, reconciliation and value-added services;
(9c) “banker to an issue” means a bank included in the Second Schedule to the Reserve Bank of India Act, 1934, carrying on the activities relating to an issue including acceptance of application, application money, allotment money and call money, refund of application money, payment of dividend and interest warrants;’
(10) "banking" shall have the meanings assigned to it in clauses (b) of section 5 of the Banking Regulation Act, 1949 (10 of 1949),
(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);
(12) “banking and other financial services” means —
(a) the following services provided by a banking company or a financial institution including a non-banking financial company or any other body corporate or [commercial concern]*, namely :—
(i) financial leasing services including equipment leasing and hire-purchase;
[‘Explanation.—For the purposes of this item, “financial leasing” means a lease
transaction where—
(i) contract for lease is entered into between two parties for leasing of a specific asset;
(ii) such contract is for use and occupation of the asset by the lessee;
(iii) the lease payment is calculated so as to cover the full cost of the asset together
with the interest charges; and
(iv) the lessee is entitled to own, or has the option to own, the asset at the end of the lease period after making the lease payment;’;]*
(ii) Omitted
(iii) merchant banking services;
(iv) securities and foreign exchange (forex) broking;
(v) asset management including portfolio management, all forms of fund
management, pension fund management, custodial, depository and trust services [x x x]1 ,
(vi) advisory and other auxiliary financial services including investment and portfolio
research and advice, advice on mergers and acquisitions and advice on corporate restructuring and strategy;
(vii)provision and transfer of information and data processing; and
(viii) banker to an issue services; and
(ix) other financial services, namely, lending, issue of pay order, demand draft,
cheque, letter of credit and bill of exchange, transfer of money including telegraphic transfer, mail transfer and electronic transfer, providing bank guarantee, overdraft facility, bill discounting facility, safe deposit locker, safe vaults, operation of bank accounts;”;
(b) foreign exchange broking provided by a foreign exchange broker other than those
covered under sub-clause (a);
(13) "Board" means the Central Board of Excise and Customs constituted under the
Central Boards of Revenue Act, 1963 (54 of 1963);
(14) "body corporate" shall have the meaning assigned to it in clause (7) of Section 2
of the Companies Act, 1956 (1 of 1956);
{ clause (7) of section 2 of the Companies Act, 1956 – “body corporate” or “corporation” includes a company incorporated outside India, but does not include – (a) a corporate sole; (b)a co-operative society registered under any law relating to co-operative societies; and (c ) any other body corporate (not being a company as defined under this Act) which the Central Government may, by Notification in the official Gazette, specify in this behalf.}
(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 electro-magnetic 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;
(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 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 electro-magnetic 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;
(17) “beauty treatment” includes hair cutting, hair dyeing, hair dressing, face and beauty treatment, cosmetic treatment, manicure, pedicure or counselling services on beauty, face care or make-up or such other similar services;
(18) "beauty parlour" means any establishment providing beauty treatment services;
(19) “business auxiliary service” means any service in relation to, —
(i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or
(ii) promotion or marketing of service provided by the client; or
(iii) any customer care service provided on behalf of the client; or
(iv) procurement of goods or services, which are inputs for the client; or
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;
(v) production or processing of goods for, or on behalf of the client; or
(vi) provision of service on behalf of the client; or
(vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision,
and includes services as a commission agent, but does not include any information technology service and any activity that amounts to “manufacture” within the meaning of clause (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, or developing of computer software or system networking, or any other service primarily in relation to operation of computer systems;
(19a) “business exhibition” means an exhibition, —
(a) to market; or
(b) to promote; or
(c) to advertise; or
(d) to showcase,
any product or service, intended for the growth in business of the producer or provider of such product or service, as the case may be;
(20) "cab" means
[ (i) a motorcab, or
(ii) a maxicab, or
(iii) any motor vehicle constructed or adapted to carry more than twelve passengers,
excluding the driver, for hire or reward:
Provided that the maxicab referred to in sub-clause (ii) or motor vehicle referred to in
subclause (iii) which is rented for use by an educational body imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching centre, shall not be included within the meaning of cab;]*
(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);
(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);
(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;
(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;
(24a) “civil enclave” has the meaning assigned to it in clause (i) of section 2 of the Airports Authority of India Act, 1994 (55 of 1994);
(24b) “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;
(25) "clearing and forwarding agent" means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent;
(25a) “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;
(25b) “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;
(26) "commercial training or coaching" means any training or coaching provided by a commercial training or coaching centre;
(27) "commercial training or coaching centre" means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes but does not include preschool coaching and training centre or any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognised by law for the time being in force;
(28) [x x x]2
(29) "commissioning and installation agency" means any agency providing service in relation to erection, commissioning or installation;
(30) "computer network" has the meaning assigned to it in clause (j) of sub-section (1) of section 2 of the Information Technology Act,2000 (21 of 2000);
(30a) “construction of complex” means —
construction of a new residential complex or a (a) part thereof; or completion and finishing services in relation (b) 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
repair, alteration, renovation or restoration (c) of, or similar services in relation to, residential complex;
(31) "consulting engineer" means any professionally qualified engineer or any body corporate or any other firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering;
(32) "convention" means a formal meeting or assembly which is not open to the general public, and dose not include a meeting or assembly the principal purpose of which is to provide any type of amusement, entertainment or recreation;
(33) "courier agency" means a any person engaged in the door-to-door transportation of time –sensitive documents, goods or articles utilising the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles;
(33a) “credit card, debit card, charge card or other payment card service” includes any
service provided,—
(i) by a banking company, financial institution including non-banking financial company or any other person (hereinafter referred to as the issuing bank), issuing such card to a card holder;
(ii) by any person to an issuing bank in relation to such card business, including receipt and processing of application, transfer of embossing data to issuing bank’s personalisation agency, automated teller machine personal identification number generation, renewal or replacement of card, change of address, enhancement of credit limit, payment updation and statement generation;
(iii) by any person, including an issuing bank and an acquiring bank, to any other
person in relation to settlement of any amount transacted through such card.
Explanation.—For the purposes of this sub-clause, “acquiring bank” means any banking
company, financial institution including non-banking financial company or any other person, who makes the payment to any person who accepts such card;
(iv) in relation to joint promotional cards or affinity cards or co-branded cards;
(v) in relation to promotion and marketing of goods and services through such card;
(vi) by a person, to an issuing bank or the holder of such card, for making use of
automated teller machines of such person; and
(vii) by the owner of trade marks or brand name to the issuing bank under an agreement, for use of the trade mark or brand name and other services in relation to such card, whether or not such owner is a club or association and the issuing bank is a member of such club or association.
Explanation.—For the purposes of this sub-clause, an issuing bank and the owner of
trade marks or brand name shall be treated as separate persons;’;
(34) "credit rating agency" means any person engaged in the business of credit rating of any debt obligation or of any project or programme requiring finance, whether in the form of debt or otherwise, and includes credit rating of any financial obligation, instrument or security, which has the purpose of providing a potential investor or any other person any information pertaining to the relative safety of timely payment of interest or principal;
(35) “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);
(35a) “customs airport” means an airport appointed as such under clause (a) of subsection (1) of section 7 of the Customs Act, 1962;’
(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);
(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;
[(36b) “design services” includes services provided in relation to designing of furniture,
consumer products, industrial products, packages, logos, graphics, websites and
corporate identity designing and production of three dimensional models;
(36c) “development and supply of content” includes development and supply of mobile
value added services, music, movie clips, ring tones, wall paper, mobile games,
data, whether or not aggregated, information, news and animation films;’]*
(37) "dry cleaning" includes dry cleaning of apparels, garments or other textile, fur or leather articles;
(38) "dry cleaner" means any person providing service in relation to dry cleaning;
(39) "electronic form" has the meaning assigned to it in clause ( r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
(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, equipment or structures, whether pre-fabricated or otherwise” 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;
(40) "event management" means any service provided in relation to planning, promotion, organizing or presentation of any arts, entertainment, business, sports, [marriage]* or any other event and includes any consultation provided in this regard;
(41) "event manager" means any person who is engaged in providing any service in relation to event management in any manner;
(42) "facsimile (FAX)" means a form of telecommunication by which fixed graphic images, such as printed texts and pictures are scanned and the information converted into electrical signals for transmission over the telecommunication system;
(43) "fashion designing" includes any activity relating to 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;
(44) "fashion designer" means any person engaged in providing service in relation to fashion designing;
(45) "financial institution" has the meaning assigned to it in clause (c) of section 45-I of the Reserve Bank of India Act, 1934 (2 of 1934); (40) "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);
(46) "foreign exchange broker" includes any authorised dealer of foreign exchange;
(46a) "forward contract" has the meaning assigned to it in clause (c) of section 2 of the Forward Contracts (Regulation) Act,1952 (74 of 1952);
(47) “franchise” means an agreement by which 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;
(48) "franchisor" any person who enters in to franchise with a franchisee and includes any associates of franchisor or a person designated by franchisor to enter into franchise on his behalf and the term "franchisee" shall be construed accordingly;
(49) "general insurance business" has the meaning assigned to it in clause (g) of section 3 of General Insurance Business (Nationalisation) Act, 1972 (57 of 1972);
(50) "goods" has the meaning assigned to it in clause (7) of section 2 of the sale of Goods Act, 1930 (3 of 1930);
(50a) “goods carriage” has the meaning assigned to it in clause (14) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988);
(50b) “goods transport agency” means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called;
(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;
(52) "health club and fitness centre" means any establishment, including a hotel or resort, providing health and fitness service;
(53) "information" has the meaning assigned to it in clause (v) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
(54) "Insurance Agent" has the meaning assigned to it in clause (10) of section 2 of the Insurance Act, 1938 (4 of 1938);
(55) "insurance auxiliary service" means any service provided by an actuary, an intermediary or insurance intermediary or an insurance agent in relation to general insurance business and includes risk assessment, claim settlement, survey and loss assessment;
(55a) “intellectual property right” means any right to intangible property, namely, trade marks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright;
(55b) “intellectual property service” means, —
(a)transferring, temporarily; or
(b) permitting the use or enjoyment of,
any intellectual property right;’;
(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);
‘(56a)
“international journey”, in relation to a passenger, means his journey from any
customs airport on board any aircraft to a place outside
(56b) “internet” means a global information system which is logically linked together by a globally unique address, based on Internet Protocol or its subsequent enhancements or upgradations and is able to support communications using the Transmission Control Protocol or Internet Protocol suite or its subsequent enhancements or upgradations and all other Internet Protocol compatible protocols;’;
(57) "internet cafe" means a commercial establishment providing facility for assessing internet;
‘(57a) “internet telephony” means telecommunication service through internet and includes fax, audio conferencing and video conferencing;’;
(58) "insurer, " means nay person carrying on the general insurance business or life insurance business and includes a re-insurer”;
(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;
‘(59a) “issue” means an offer of sale or purchase of securities to, or from, the public or the holder of securities;’;
(60) [x x x]3
(61) "life insurance business" has the meaning assigned to it in clause (11) of section 2 of the Insurance Act, 1938 (4 of 1938);
(62) "light motor vehicle" means any motor vehicle constructed or adapted to carry more than 6 passengers, but not more than 12 passengers, excluding the driver;
(63) "magnetic storage device" include wax blanks, discs or blanks strips or films for the purpose of original sound recording;
(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;
(64) “management, 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) management of properties, whether immovable or not;
(b) maintenance or repair of properties, whether immovable or not; or
(c) maintenance or repair including reconditioning or restoration, or servicing of any goods, excluding a motor vehicle;
[‘Explanation.—For the removal of doubts, it is hereby declared that for the
purposes of this clause, “goods” includes computer software;]*
(65) “management or [business]* consultant” means any person who is engaged in providing any service, either directly or indirectly, in connection with the management of any organisation [or business]* in any manner and includes any person who renders any advice, consultancy or technical assistance, in relation to financial management, human resources management, marketing management, production management, logistics management, procurement and management of information technology resources or other similar areas of management;
(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;
[Explanation.—For the purposes of this clause, social function includes marriage;]*
(67) "Mandap keeper" means a person who allows temporary occupation of a Mandap for consideration for organizing any official, social or business function;
[Explanation.—For the purposes of this clause, social function includes marriage;]*
(68) “manpower recruitment or supply agency” means any person engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to a client;
(69) "market research agency" means any person 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;
(70) "maxi cab" has the meaning assigned to it in clause (22) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988);
(71) "motor cab" has the meaning assigned to it in clause (25) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988);
(72) "motor car" has the meaning assigned to it in clause (26) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988);
(73) "motor vehicle" has the meaning assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988);
(74) "non-banking financial company" has the meaning assigned to it in clause (f) of section 45-I of the Reserve Bank of India Act, 1934 (2 of 1934);
(75) "on-line information and database access or retrieval" means providing data or information, retrievable or otherwise, to a customer, in electronic form through a computer network;
(75a) “opinion poll” means any service designed to secure information on public opinion regarding social, economic, political or other issues;
(75b) “opinion poll agency” means any person engaged in providing any service in relation to opinion poll;
(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);
(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 provided by way of tenancy or otherwise by the person receiving such services;
(76b) “packaging activity” means packaging of goods including pouch filling, bottling, labelling 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 (1 of 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 organising an official, social or business function;
[Explanation.—For the purposes of this clause, social function includes marriage;]*
(77b) “pandal or shamiana contractor” means a person engaged in providing any service, either directly or indirectly, in connection with the preparation, arrangement, erection or decoration of a pandal or shamiana and includes the supply of furniture, fixtures, lights and lighting fittings, floor coverings and other articles for use therein;
(77c) “passenger” means any person boarding, at any customs airport, an aircraft for performing an international journey, but does not include—
(i) a person who has arrived at such customs airport from a place outside India and is in transit through India, provided that he does not pass through immigration and does not leave customs area and continues his journey to a place outside India; and
(ii) a person employed or engaged by the aircraft operator in any capacity on board the aircraft;’
(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 any person 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);
(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 service" 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 of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly through the medium of relay stations;
(86b) “programme producer” means any person who produces a programme on behalf of another person;
(86c) “public relations” includes strategic counseling based on industry, media and perception research, corporate image management, media relations, media training, press release, press conference, financial public relations, brand support, brand launch, retail support and promotions, events and communications and crisis communications;’;
(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) “recognised association” has the meaning assigned to it in clause (j) of section 2 of the Forward Contracts (Regulation) Act, 1952 (74 of 1952);
(89b) “registered association” has the meaning assigned to it in clause (jj) of section 2 of the Forward Contracts (Regulation) Act, 1952 (74 of 1952);
(89c) “registrar to an issue” means any person carrying on the activities in relation to an issue including collecting application forms from investors, keeping a record of applications and money received from investors or paid to the seller of securities, assisting in determining the basis of allotment of securities, finalising the list of persons entitled to allotment of securities and processing and despatching allotment letters, refund orders or certificates and ot her related documents;’
(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);
[(90a) “renting of immovable property” includes renting, letting, leasing, licensing or other
similar arrangements of immovable property for use in the course or furtherance of
business or commerce but does not include —
(i) renting of immovable property by a religious body or to a religious body; or
(ii) renting of immovable property to an educational body, imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching centre;
Explanation.—For the purposes of this clause, “for use in the course or furtherance of
business or commerce” includes use of immovable property as factories, office buildings,
warehouses, theatres, exhibition halls and multiple-use buildings;]*
(91) "rent-a-cab scheme operator" means any person engaged in the business of renting of cabs;
(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 person 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;
(95a) “share transfer agent” means any person who maintains the record of holders of securities and deals with all matters connected with the transfer or redemption of securities or activities incidental thereto;’;
(96)) "ship" means a sea-going vessel and includes a sailing vessel;
(96a) “ship management service” includes,—
(i) the supervision of the maintenance, survey and repair of ship;
(ii) engagement or providing of crews;
(iii) receiving the hire or freight charges on behalf of the owner;
(iv) arrangements for loading and unloading;
(v) providing for victualling or storing of ship;
(vi) negotiating contracts for bunker fuel and lubricating oil;
(vii) payment, on behalf of the owner, of expenses incurred in providing services or in relation to the management of ship;
(viii) the entry of ship in a protection or indemnity association;
(ix) dealing with insurance, salvage and other claims; and
(x) arranging of insurance in relation to ship;’;
(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 person engaged in the business of rendering any service relating to sound recording;
(99a) “sponsorship” includes naming an event after the sponsor, displaying the sponsor’s company logo or trading name, giving the sponsor exclusive or priority booking rights, sponsoring prizes or trophies for competition; but does not include any financial or other support in the form of donations or gifts, given by the donors subject to the condition that the service provider is under no obligation to provide anything in return to such donors;’;
(100) "steamer agent" means any person who undertakes, either directly or indirectly, --
(i)to perform any service in connection with the ship’s husbandry or dispatch including the rendering of administrative work related thereto; or
(ii)to book, advertise or canvass for cargo for or on behalf of a shipping line; or
(iii)to provide container feeder services for or on behalf of a shipping line;
(101) "stock broker" means a person,who has either made an application for registration or is registered as a stock-broker or sub-broker, as the case may be, in accordance with the rules and regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992);
(102) "storage and warehousing" includes storage and warehousing services for goods including liquids and gases but does not include any service provided for storage of agricultural produce or any service provided by a cold storage;
(103) [x x x]4
(104) [x x x]5
(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;
(104c) “support services of business or commerce” means services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, processing of purchase orders and fulfilment services, information and tracking of delivery schedules, managing distribution and logistics, customer relationship management services, accounting and processing of transactions, operational assistance for marketing, formulation of customer service and pricing policies, infrastructural support services and other transaction processing.
Explanation.—For the purposes of this clause, the expression “infrastructural support services” includes providing office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security; ’;
(105) "taxable service" means any service provided or to be provided -
(a) to any person, by a stock-broker in connection with the sale or purchase of
securities listed on a recognized stock exchange;
(b) [x x x] 6
(c ) [x x x]7
(d) to a policy holder or any person, by an insurer, including re-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 [ including the discipline of computer hardware engineering but excluding the discipline of computer software engineering”]*
(h) to a client, by a custom house agent in relation to the entry or departure of conveyances or the import or export of goods;
(i) to a shipping line, by a steamer agent in relation to a ship’s husbandry or dispatch or any administrative work related thereto as well as the booking, advertising or canvassing of cargo, including container feeder services;
(j) to a client, by a clearing and forwarding agent in relation to clearing and forwarding operations, in any manner;
(k) to a client, by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner; [‘Explanation.—For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, recruitment or supply of manpower includes services in relation to prerecruitment screening, verification of the credentials and antecedents of the candidate and authenticity of documents submitted by the candidate]*
(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 or [business]* consultant in connection with the management of any organization or [business,]* 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 person in relation to holding of convention, in any manner;
(zd) [x x x] 8
(ze) [x x x]9
(zf) [x x x]10
(zg) [x x x]11
(zh) to a customer, by any person, 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 paoointed in India or by any person who acts on its behalf in any manner, engaged in the activity of selling of time slots for broadcsting of any programme or obtaining sponsorships for programmes 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 electro-magnetic 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 any person or insurer, including re-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 or
repair of motor cars or two wheeled motor vehicles; in any manner
(zp) x x x
(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 or any person, by an insurer, including re-insurer carrying on
life insurance business in relation to risk cover in life insurance;
(zy) to a policy holder or any person or insurer, including re-insurer by an actuary,
or intermediary or insurance intermediary or insurance agent, in relation to insurance auxiliary services concerning life insurance business;
(zz) to a customer, by a rail travel agent in relation to booking of passage for travel
by rail;
(zza) to any person, by a storage or warehouse keeper in relation to storage and
warehousing of goods; and the term "service provider" shall be construed
accordingly;
(zzb) to a client, by any person 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 any person, by a erection, commissioning and installation agency in relation
to commissioning and installation;
(zze) to a franchisee, by the franchisor in relation to franchise;
(zzf) to any person, by an internet cafe in relation to access of internet;
(zzg) to a customer, by any person in relation to management, maintenance or
repair;
(zzh) to any person, by a technical testing and analysis agency, in relation to
technical testing and analysis;
(zzi) to any person, by a technical inspection and certification agency, in relation to
technical inspection and certification;
(zzj) 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 air craft operator, in relation to transport of goods by
aircraft;
(zzo) to an exhibitor, by the organisor of 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 any other person, 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 a panadal or shamiana contractor in relation to a panadal 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 the booking of passage for
travel;
(zzy) to any person, by a member of a recognised association or a registered
association, in relation to a forward contract; and the term "service provider" shall be construed accordingly;
(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;
(zzzi) to any person, by a registrar to an issue, in relation to sale or purchase of
securities;
(zzzj) to any person, by a share transfer agent, in relation to securities;
(zzzk) to any person, by any other person, in relation to automated teller machine
operations, maintenance or management service, in any manner;
(zzzl) to a banking company or a financial institution including a non-banking
financial company or any other body corporate or a firm, by any person, in relation to recovery of any sums due to such banking company or financial institution, including a non-banking financial company, or any other body corporate or a firm, in any manner;
(zzzm) to any person, by any other person, in relation to sale of space or time for
advertisement, in any manner; but does not include sale of space for advertisement in print media and sale of time slots by a broadcasting agency or organisation.
Explanation 1.—For the purposes of this sub-clause, “sale of space or time for
advertisement” includes,—
(i) providing space or time, as the case may be, for display, advertising, showcasing of any product or service in video programmes, television programmes or motion pictures or music albums, or on billboards, public places, buildings, conveyances, cell phones, automated teller machines, internet;
(ii) selling of time slots on radio or television by a person, other than a broadcasting agency or organisation; and
(iii) aerial advertising.
[Explanation 2.—For the purposes of this sub-clause, ‘‘print media’’ means,—
(i) ‘‘newspaper’’ as defined in sub-section (1) of section 1 of the Press and Registration of Books Act, 1867;
(ii) ‘‘book’’ as defined in sub-section (1) of section 1 of the Press and Registration of Books Act, 1867, but does not include business directories, yellow pages and trade catalogues which are primarily meant for commercial purposes;]*
(zzzn) to any body corporate or firm, by any person receiving sponsorship, in
relation to such sponsorship, in any manner, but does not include services in relation to sponsorship of sports events;
(zzzo) to any passenger, by an aircraft operator, in relation to scheduled or non-
scheduled air transport
of such passenger embarking in
Explanation 1.—For the purposes of this sub-clause, economy class in an aircraft meant for scheduled air transport of passengers means,—
(i) where there is more than one class of travel, the class attracting the lowest standard fare; or
(ii) where there is only one class of travel, that class.
Explanation 2.—For the purposes of this sub-clause, in an aircraft meant for nonscheduled air transport of passengers, no class of travel shall be treated as economy class;
(zzzp) to any person, by any other person other than Government railway as defined
in clause (20) of section 2 of the Railways Act, 1989, in relation to transport of goods in containers by rail, in any manner;
(zzzq) to any person, by any other person, in relation to support services of business
or commerce, in any manner;
(zzzr) to any person, by any other person, in relation to auction of property, movable
or immovable, tangible or intangible, in any manner, but does not include auction of property under the directions or orders of a court of law or auction by the Government;
(zzzs) to any person, by any other person, in relation to managing the public
relations of such person, in any manner;
(zzzt) to any person, under a contract or an agreement, by any other person, in
relation to ship management service;
(zzzu) to any person, by any other person, in relation to internet telephony;
(zzzv) to any person, by any other person, in relation to transport of such person
embarking from any port or other port in
Explanation.—For the purposes of this sub-clause, “cruise ship” means a ship or vessel used for providing recreational or pleasure trips, but does not include a ship or vessel used for private purposes or a ship or vessel of, or less than, fifteen net tonnage;
(zzzw) to any person, by any other person, in relation to credit card, debit card,
charge card or other payment card service, in any manner;’;
[(zzzx) to any person, by the telegraph authority in relation to telecommunication
service;
(zzzy) to any person, by any other person in relation to mining of mineral, oil or
gas;
(zzzz) to any person, by any other person in relation to renting of immovable
property for use in the course or furtherance of business or commerce.
Explanation 1.—For the purposes of this sub-clause, “immovable property” includes—
(i) building and part of a building, and the land appurtenant thereto;
(ii) land incidental to the use of such building or part of a building;
(iii) the common or shared areas and facilities relating thereto; and
(iv) in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate, but does not include-
(a) vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes;
(b) vacant land, whether or not having facilities clearly incidental to the use of such vacant land;
(c) land used for educational, sports, circus, entertainment and parking purposes; and
(d) building used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities.
Explanation 2.—For the purposes of this sub-clause, an immovable property partly for use in the course or furtherance of business or commerce and partly for residential or any other purposes shall be deemed to be immovable property for use in the course or furtherance of business or commerce;
(zzzza) to any person, by any other person in relation to the execution of a works
contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams.
Explanation.—For the purposes of this sub-clause, “works contract” means a
contract wherein,—
(i) transfer of property in goods involved in the execution of such contract is
leviable to tax as sale of goods, and
(ii) such contract is for the purposes of carrying out,—
(a) erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or
(b) construction of a new building or a civil structure or a part thereof, or of a
pipeline or conduit, primarily for the purposes of commerce or industry; or
(c) construction of a new residential complex or a part thereof; or
(d) completion and finishing services, repair, alteration, renovation or
restoration of, or similar services, in relation to (b) and (c); or
(e) turnkey projects including engineering, procurement and construction or
commissioning (EPC) projects;
(zzzzb) to any person, by any other person in relation to development and supply of
content for use in telecommunication services, advertising agency services and on-line information and database access or retrieval services;
(zzzzc) to any person, by any other person, except a banking company or a financial institution including a non-banking financial company or any other body corporate or commercial concern referred to in sub-clause (zm), in relation to asset management including portfolio management and all forms of fund management;
(zzzzd) to any person, by any other person in relation to design services,
but does not include service provided by-
(i) an interior decorator referred to in sub-clause (q); and
(ii) a fashion designer in relation to fashion designing referred to in sub-clause (zv);’]*
(106) "technical testing and analysis" means any service in relation to physical, chemical, biological or any other scientific testing or analysis of goods or material or any immovable property, but does not include any testing or analysis service provided in relation to human beings or animals;
‘Explanation.—For the removal of doubts, it is hereby declared that for the purposes of this clause, “technical testing and analysis” includes testing and analysis undertaken for the purpose of clinical testing of drugs and formulations; but does not include testing or analysis for the purpose of determination of the nature of diseased condition, identification of a disease, prevention of any disease or disorder in human beings or animals;’;
(107) "technical testing and analysis agency" means any agency or person engaged in providing service in relation to technical testing and analysis;
(108) "technical inspection and certification" means inspection or examination of goods or process or material or any immovable property to certify that such goods or process or material or immovable property qualifies or maintains the specified standards, including functionality or utility or quality or safety or any other characteristic or parameters, but does not include any service in relation to inspection and certification of pollution levels;
(109) "technical inspection and certification agency" means any agency or person engaged in providing service in relation to technical inspection and certification;
[(109a) “telecommunication service” means service of any description provided by means
of any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence or information of any nature, by wire, radio, optical, visual or other electro-magnetic means or systems, including the related transfer or assignment of the right to use capacity for such transmission, emission or reception by a person who has been granted a licence under the first proviso to sub-section (1) of section 4 of the Indian Telegraph Act, 1885 and includes—
(i) voice mail, data
services, audio
(ii) fixed telephone services including provision of access to and use of the public switched telephone network for the transmission and switching of voice, data and video, inbound and outbound telephone service to and from national and international destinations;
(iii) cellular mobile telephone services including provision of access to and use of switched or non-switched networks for the transmission of voice, data and video, inbound and outbound roaming service to and from national and international destinations;
(iv) carrier services including provision of wired or wireless facilities to originate, terminate or transit calls, charging for interconnection, settlement or termination of domestic or international calls, charging for jointly used facilities including pole attachments, charging for the exclusive use of circuits, a leased circuit or a dedicated link including a speech circuit, data circuit or a telegraph circuit;
(v) provision of call management services for a fee including call waiting, call forwarding, caller identification, three-way calling, call display, call return, call screen, call blocking, automatic call-back, call answer, voice mail, voice menus and video conferencing;
(vi) private network services including provision of wired or wireless telecommunication link between specified points for the exclusive use of the client;
(vii) data transmission services including provision of access to wired or wireless facilities and services specifically designed for efficient transmission of data; and
(viii) communication through facsimile, pager, telegraph and telex, but does not include service provided by-
(a) any person in relation to on-line information and database access or retrieval or both referred to in sub-clause (zh) of clause (105);
(b) a broadcasting agency or organisation in relation to broadcasting referred to in subclause (zk) of clause (105); and
(c) any person in relation to internet telephony referred to in sub-clause (zzzu) of clause (105);’]*
(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 ‘(115) of planning, scheduling, organising or arranging tours (which business 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 person 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.
‘‘Explanation.—For the purposes of this section, taxable service includes any taxable service provided or to be provided by any unincorporated association or body of persons to a member thereof, for cash, deferred payment or any other valuable consideration.”;
65A. Classification of taxable services – (1) For the purposes of this chapter, classification of taxable services shall be determined according to the terms of the sub-clauses (105) of section 65;
(2) When for any reason , a taxable service is prima facie, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected as follows :-
(a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description;
(b) composite services consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable;
(c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merits consideration;
66. Charge of service tax –
There shall be levied a tax (hereinafter referred to as the service tax) at the rate of twelve
per cent. of the value of taxable services referred to in sub-clauses (a), (d), (e), (f), (g,) (h), (i), (j),(k), (l), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v), (w), (x), (y), (z), (za), (zb), (zc), (zh), (zi), (zj), (zk),(zl), (zm), (zn), (zo), (zq), (zr), (zs), (zt), (zu), (zv), (zw), (zx), (zy), (zz), (zza), (zzb), (zzc), (zzd), (zze), (zzf), (zzg), (zzh), (zzi), (zzk), (zzl), (zzm), (zzn), (zzo), (zzp), (zzq), (zzr), (zzs), (zzt), (zzu), (zzv), (zzw), (zzx), (zzy), (zzz), (zzza), (zzzb), (zzzc), (zzzd), (zzze), (zzzf), (zzzg,) (zzzh), (zzzi), (zzzj), (zzzk), (zzzl), (zzzm), (zzzn), (zzzo), (zzzp), (zzzq), (zzzr), (zzzs), (zzzt), (zzzu), (zzzv), (zzzw), (zzzx), (zzzy), (zzzz), (zzzza), (zzzzb), (zzzzc) and (zzzzd) of clause (105) of section 65 and collected in such manner as may be prescribed.
66A. (1) Where any service specified in clause (105) of section 65 is,—
(a) 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
(b) received by a person (hereinafter referred to as the recipient) who has his place of
business,
fixed establishment, permanent address or usual place of residence, in
such service shall, for the purposes of this section, be taxable service, and
such taxable service shall be treated as if the recipient had himself provided
the service in
Provided that where the recipient of the service is an individual and such service received by him is otherwise than for the purpose of use in any business or commerce, the provisions of this sub-section shall not apply:
Provided further that where the provider of the service has his business establishment both in that country and elsewhere, the country, where the establishment of the provider of service directly concerned with the provision of service is located, shall be treated as the country from which the service is provided or to be provided.
(2) Where a person is
carrying on a business through a permanent establishment in
Explanation 1.— A person carrying on a business through a branch or agency in any country shall be treated as having a business establishment in that country.
Explanation 2.—Usual place of residence, in relation to a body corporate, means the place where it is incorporated or otherwise legally constituted.’;
67. (1) Subject to the provisions of this Chapter, service tax chargeable on any taxable service with reference to its value shall,—
(i) in a case where the provision of service is for a consideration in money, be the gross
amount charged by the service provider for such service provided or to be provided by him;
(ii) in a case where the provision of service is for a consideration not wholly or partly
consisting of money, be such amount in money, with the addition of service tax charged, is equivalent to the consideration;
(iii) in a case where the provision of service is for a consideration which is not ascertainable, be the amount as may be determined in the prescribed manner.
(2) Where the gross amount charged by a service provider, for the service provided or to be provided is inclusive of service tax payable, the value of such taxable service shall be such amount as, with the addition of tax payable, is equal to the gross amount charged.
(3) The gross amount charged for the taxable service shall include any amount received
towards the taxable service before, during or after provision of such service.
(4) Subject to the provisions of sub-sections (1), (2) and (3), the value shall be determined in such manner as may be prescribed.
Explanation.—For the purposes of this section,—
(a) “consideration” includes any amount that is payable for the taxable services provided
or to be provided;
(b) “money” includes any currency, cheque, promissory note, letter of credit, draft, pay
order, travellers cheque, money order, postal remittance and other similar instruments but does not include currency that is held for its numismatic value;
(c) “gross amount charged” includes payment by cheque, credit card, deduction from
account and any form of payment by issue of credit notes or debit notes and book
adjustment.’;
68. Payment of service tax. –
(1) Every person providing taxable service to any person shall pay service tax at the rate specified in section 66 in such manner and within such period as may be prescribed.
(2) Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.
69. Registration - (1) 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.
(2) The Central Government may, by notification in the Official Gazette, specify such other person or class of persons, who shall make an application for registration within such time and in such manner and in such form as may be prescribed.
70. Furnishing of Returns. – (1) Every person liable to pay the service tax shall himself
assess the tax due on the services provided by him and shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency [and with such late fee not exceeding two thousand rupees, for delayed furnishing of return, as may be prescribed”]*
.
(2) The person or class of persons notified under sub-section (2) of section 69, shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency as may be prescribed.
71. [x x x]12
71A. Filing of return by certain customers . - Notwithstanding any thing contained in the provisions of Sections 69 and 70, the provisions there of shall not apply to a person referred to in the proviso to sub-section (1) of Section 68 for 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 the 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. [x x x]13
73. Value of taxable services escaping assessment. –
(1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice :
Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of —
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or of the rules made there under 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 mis-statement 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, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined.
“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 not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid :
Provided that the Central Excise Officer may determine the amount of 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 in sub-section (1) shall be counted from the date of receipt of such information of payment.
Explanation. — For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the 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 has been short-levied or short-paid or erroneously refunded by reason of—
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax.
(5) The provisions of sub-section (3) shall not apply to any case where the service tax had become payable or ought to have been paid before the 14th day of May, 2003.
(6) For the purposes of this section, “relevant date” means, —
(i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid —
(a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed;
(b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules;
(c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder;
(ii) in a case where the service tax is provisionally assessed under this 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.’;
73A. Service Tax collected from any person to be deposited with Central Government
(1) Any person who is liable to pay service tax under the provisions of this Chapter or
the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made thereunder from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government.
(2) Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government.
(3) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) or sub-section (2) and the same has not been so paid, the Central Excise Officer shall serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government.
(4) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (3), determine the amount due from such person, not being in excess of the amount specified in the notice, and thereupon such person shall pay the amount so determined.
(5) The amount paid to the credit of the Central Government under sub-section (1) or subsection (2) or sub-section (4), shall be adjusted against the service tax payable by the person on finalisation of assessment or any other proceeding for determination of service tax relating to the taxable service referred to in sub-section (1).
(6) Where any surplus amount is left after the adjustment under sub-section (5), such amount shall either be credited to the Consumer Welfare Fund referred to in section 12C of the Central Excise Act, 1944 or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B of the said Act and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Central Excise Officer for the refund of such surplus amount.
73B.Interest on amount collected in excess
Where an amount has been collected in excess of the tax assessed or determined and paid for any taxable service under this Chapter or the rules made thereunder from the recipient of such service, the person who is liable to pay such amount as determined under sub-section (4) of section 73A, shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent. and not exceeding twenty-four per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first day of the month succeeding the month in which the amount ought to have been paid under this Chapter, but for the provisions contained in sub-section (4) of section 73A, till the date of payment of such amount:
Provided that in such cases where the amount becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B of the Central Excise Act, 1944, and such amount payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction, as the case may be, no interest shall be payable and in other cases, the interest shall be payable on the whole amount, including the amount already paid.
Explanation 1.—Where the amount determined under sub-section (4) of section 73A is reduced by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest payable thereon under this section shall be on such reduced amount.
Explanation 2.—Where the amount determined under sub-section (4) of section 73A is
increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may
be, the court, the interest payable thereon under this section shall be on such increased
amount.
73C. Provisional attachment to protect revenue in certain cases
(1) Where, during the pendency of any proceeding under section 73 or section 73A, the Central Excise Officer is of the opinion that for the purpose of protecting the interests of revenue, it is necessary so to do, he may, with the previous approval of the Commissioner of Central Excise, by order in writing, attach provisionally any property belonging to the person on whom notice is served under sub-section (1) of section 73 or sub-section (3) of section 73A, as the case may be, in such manner as may be prescribed.
(2) Every such provisional attachment shall cease to have effect after the expiry of a period of six months from the date of the order made under sub-section (1):
Provided that the Chief Commissioner of Central Excise may, for reasons to be recorded in writing, extend the aforesaid period by such further period or periods as he thinks fit, so, however, that the total period of extension shall not in any case exceed two years.
73D. Publication of information in respect of persons in certain cases
(1) If the Central Government is of the opinion that it is necessary or expedient in the public interest to publish the name of any person and any other particulars relating to any proceedings under this Chapter in respect of such person, it may cause to be published such names and particulars in such manner as may be prescribed.
(2) No publication under this section shall be made in relation to any penalty imposed under this Chapter until the time for presenting an appeal to the Commissioner (Appeals) under section 85 or the Appellate Tribunal under section 86, as the case may be, has expired without an appeal having been presented or the appeal, if presented, has been disposed of.
Explanation.—In the case of a firm, company or other association of persons, the names of the partners of the firm, directors, managing agents, secretaries and treasurers or managers of the company, or the members of the association, as the case may be, shall also be published if, in the opinion of the Central Government, circumstances of the case justify it.”;
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), the 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 the liability of the assessee or reducing a refund , 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 the liability of the assessee or increasing the refund, the Central Excise Officer shall make any refund which may be due to such assessee.
(7) Where any such amendment has the effect of enhancing the liability of the 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 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 Ofiicial Gezette for the period] by which such crediting of the tax or any part thereof is delayed.
75A. [x x x]14.
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 amount 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 any rule made thereunder for which no penalty is separately provided in this Chapter, shall be liable to a penalty which may extend to an amount not exceeding one thousand rupees.”;
78. Penalty for suppressing value of taxable service. –
Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of —
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, the person, liable to pay such service tax or erroneous refund, as determined under sub-section (2) of section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice, the amount of service tax so not levied or paid or short-levied or short-paid or erroneously refunded:”;
Provided that where such service tax as determined under sub-section (2) of section 73, and the interest payable thereon under section 75, is paid within thirty days from the date of communication of order of the Central Excise Officer determining such service tax, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the service tax so determined :
Provided further that the benefit of reduced penalty under the first proviso shall be available only if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso :
Provided also that where the service tax determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the service tax as reduced or increased, as the case may be, shall be taken into account :
Provided also that in case where the service tax determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of service tax so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of communication of the order by which such increase in service tax takes effect.
Explanation. - For the removal of doubts, it is hereby declared that -
(1) the provisions of this section shall also apply to cases in which the order determining the service tax under sub-section (2) of section 73 relates to notices issued prior to the day on which the Finance Bill, 2003 receives the assent of the President;
(2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.”
79. [x x x]15
80. Penalty not to be imposed in certain cases. – 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.
81. [x x x]16
82. Power to search premises –
(1) If 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.
(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.
83. Application of certain provisions of Act 1 of 1944 – 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: -
9C, 9D, 11B, 11BB, 11C,12 12A, 12B. 12C, 12D, 12E, 14, [14AA]*, 15, 33A, 35F to 35-O (both inclusive), 35Q, 36, 36A, 36B, 37A, 37B, 37C, 37D, [38A]* and 40.
83A Power of adjudication. 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 (54 of 1963), may, by notification in the Official Gazette, specify.
84. Revision of orders by the Commissioner of Central Excise.-
(1) The Commissioner of Central Excise may call for the record of a proceeding under this Chapter 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.
(2) No order, which is prejudicial to the assessee shall be passed under this section unless the assessee has been given an opportunity of being heard.
(3) The Commissioner of Central Excise shall communicate the order passed by him under sub-section (1) to the assessee, such adjudicating authority and the Board.
(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).
(5) No order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed.
85. Appeals to the Commissioner of Central Excise (Appeals). –
(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).
(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.
(3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority relating to service tax, interest or penalty under this Chapter:
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.
(4) The Commissioner of Central Excise (Appeals) shall hear and determine the 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 :
Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement.
(5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercise and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944).
86. Appeals to Appellate Tribunal –
(1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under section 73 or section 83A 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.
[(1A) (i) The Board may, by notification in the Official Gazette, constitute such
Committees as may be necessary for the purposes of this Chapter.
(ii) Every Committee constituted under clause (i) shall consist of two Chief
Commissioners of Central Excise or two Commissioners of Central Excise, as the
case may be.’]*
(2) The [Committee of Chief Commissioners of Central Excise]* may, if it objects to any order passed by the Commissioner of Central Excise under section 73 or section 83A or section 84, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.
(2A) The [Committee of Commissioners]* 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.
(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 [Committee of Chief Commissioners or the Committee of Commissioners]* as the case may be.
(4) The Commissioner of Central Excise or any Central Excise Officer subordinatge 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).
(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.
(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of demand of service tax and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of, —
(a) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;
(b) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees;
(c) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees:
Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2) or sub-section (2A) or a memorandum of cross-objections referred to in sub-section (4).
(6A) Every application made before the Appellate Tribunal, —
(a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or
(b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees :
Provided that no such fee shall be payable in the case of an application filed by the Commissioner of Central Excise or Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be under this sub-section.”
(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).
87 Recovery of any amount due to Central Government.
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:—
(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;
(b) (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;
(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;
(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;
(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;
(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.”;
87. [x x x]17
88. [x x x]18
89. [x x x]19
90. [x x x]20
91. [x x x]21
92. [x x x]22
93. Power to grant exemption from service tax. –
(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally or subject to such conditions as may be specified in the notification, taxable service of any specified description from the whole or any part of the service tax leviable thereon.
(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt any taxable service of any specified description from the payment of whole or any part of the service tax leviable thereon, under circumstances of exceptional nature to be stated in such order.
94. Power to make rules. -
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Chapter.
(2) 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: -
(a) collection and recovery of service tax under sections 66 and 68;
“(aa) the determination of amount and value of taxable service under section 67;”;
(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;
(c) the form, manner and frequency of the returns to be furnished under sub-sections (1) and (2) [and the late fee for delayed furnishing of return under sub-section (1)]* of section 70;
(cc) the manner of provisional attachment of property under sub-section (1) of
section 73C;
(ccc) publication of name of any person and particulars relating to any proceeding under
(d) the form in which appeal under section 85 or under sub-section (6) of section 86
may be filed and the manner in which they may be verified;
(e) the manner in which the memorandum of cross objections under sub-section (4) of section 86 may be verified;
(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;
(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;
(eeee) the manner of recovery of any amount due to the Central Government under section 87;”;
(f) provisions for determining export of taxable services;
(g)
grant of exemption to, or rebate of service tax paid on, taxable services which
are exported out of
(h) rebate of service tax paid or payable on the taxable services consumed or duties paid or deemed to have been paid on goods used for providing taxable services which are exported out of India;
(i) any other matter which by this Chapter is to be or may be prescribed.;
(3) The power to make rules conferred by this section shall on the first occasion of the exercise thereof include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Chapter come into force.
(4) Every rule made under this Chapter and every notification issued under section 93 shall be laid, as soon as may be, after it is 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.
95. Power to remove difficulties –
(1) If any difficulty arises in respect of implementing, or assessing the value of, any taxable service incorporated in this Chapter by the Finance Act,2002, the Central Government may, by order published in the Official Gazette, which is not inconsistent with the provisions of this Chapter remove the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the date on which the provisions of the Finance Act,2002 incorporating such taxable services in this Chapter come into force.
(1A) If any difficulty arises in respect of implementing, or assessing the value of, any taxable service incorporated in this Chapter by the Finance Act, 2003, the Central Government may, by order published in the Official Gazette, not inconsistent with the provisions of this Chapter, remove the difficulty :
Provided that no such order shall be made after the expiry of a period of two years from the date on which the Finance , 2003 incorporating such taxable services in this chapter come into force.
(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.
(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.”
(1D) 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, 2007, 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, 2007 receives the assent of the President.’’;
(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.
96. Consequential amendment.– In the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974), in the Schedule, after entry 7 relating to the Central Excise Act, 1944 (1 of 1944), the following entry shall be inserted, namely:-
"7A. Chapter V of the Finance Act, 1994."
ADVANCE RULINGS
96A. Definitions. — In this Chapter, unless the context otherwise requires,-
(a) “advance ruling” means the determination, by the Authority, of a question of law or fact specified in the application regarding the liability to pay service tax in relation to a service proposed to be provided, by the applicant;
(b) “applicant” means—
(i) (a) a
non-resident setting up a joint venture in
(b) a
resident setting up a joint venture in
(c) a
wholly owned subsidiary Indian company, of which the holding company is a
foreign company, who or which, as the case may be, proposes to undertake any
business activity in
(ii) a
joint venture in
(iii)a resident falling within any such class or category of persons, as the Central Government may, by notification in the Official Gazette, specify in this behalf, and which or who, as the case may be, makes application for advance ruling under sub-section (1) of section 96C;
[Explanation.- For the purposes of this clause, “joint venture in India” means a contractual arrangement whereby two or more persons undertake an economic activity which is subject to joint control and one or more of the participants or partners or equity holders is a non-resident having substantial interest in such arrangement;]*
(c) “application” means an application made to the Authority under sub-section (1) of section 96C;
(d) “Authority” means the Authority for Advance Rulings (Central Excise, Customs and Service Tax) constituted under section 28F of the Customs Act, 1962 (52 of 1962);
(e) “non-resident”, “Indian company” and “foreign company” have the meanings respectively assigned to them in clauses (30), (26) and (23A) of section 2 of the Income-tax Act, 1961 (43 of 1961);
(f) words and expressions used but not defined in this Chapter and defined in the Central Excise Act of 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 duty of excise.
96B. Vacancies, etc., not to invalidate proceedings. — No proceeding before, or pronouncement of advance ruling by, the Authority under this Chapter shall be questioned or shall be invalid on the ground merely of the existence of any vacancy or defect in the constitution of the Authority.
96C. Application for advance ruling. — (1) An applicant desirous of obtaining an advance ruling under this Chapter may make an application in such form and in such manner as may be prescribed, stating the question on which the advance ruling is sought.
The question on which the (2) advance ruling is sought shall be in respect of,-
(a) classification of any service as a taxable service under Chapter V;
(b) the valuation of taxable services for charging service tax;
(c) the principles to be adopted for the purposes of determination of value of the taxable service under the provisions of Chapter V;
(d) applicability of notifications issued under Chapter V;
(e) admissibility of credit of service tax.
(f) determination of the liability to pay service tax on a taxable service under the provisions of Chapter V.
(3) The application shall be made in quadruplicate and be accompanied by a fee of two thousand five hundred rupees.
(4) An applicant may withdraw an application within thirty days from the date of the application.
96D. Procedure on receipt of application. — (1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the Commissioner of Central Excise and, if necessary, call upon him to furnish the relevant records :
Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the Commissioner of Central Excise.
(2) The Authority may, after examining the application and the records called for, by order, either allow or reject the application:
Provided that the Authority shall not allow the application where the question raised in the application is,-
(a) already pending in the applicant's case before any Central Excise Officer, the Appellate Tribunal or any Court;
(b) the same as in a matter already decided by the Appellate Tribunal or any Court :
Provided further that no application shall be rejected under this sub-section unless an opportunity has been given to the applicant of being heard:
Provided also that where the application is rejected, reasons for such rejection shall be given in the order.
(3) A copy of every order made under sub-section (2) shall be sent to the applicant and to the Commissioner of Central Excise.
(4) Where an application is allowed under sub-section (2), the Authority shall, after examining such further material as may be placed before it by the applicant or obtained by the Authority, pronounce its advance ruling on the question specified in the application.
(5) On a request received from the applicant, the Authority shall, before pronouncing its advance ruling, provide an opportunity to the applicant of being heard, either in person or through a duly authorised representative.
Explanation.- For the purposes of this sub-section, “authorised representative” has the meaning assigned to it in sub-section (2) of section 35Q of the Central Excise Act, 1944. (1 of 1944).
(6) The Authority shall pronounce its advance ruling in writing within ninety days of the receipt of application.
(7) A copy of the advance ruling pronounced by the Authority, duly signed by the Members and certified in the prescribed manner shall be sent to the applicant and to the Commissioner of Central Excise, as soon as may be, after such pronouncement.
96E. Applicability of advance ruling. - (1) The advance ruling pronounced by the Authority under section 96D shall be binding only-
(a) on the applicant who had sought it;
(b) in respect of any matter referred to in sub-section (2) of section 96C;
(c) on the Commissioner of Central Excise, and the Central Excise authorities subordinate to him, in respect of the applicant.
(2) The advance ruling referred to in sub-section (1) shall be binding as aforesaid unless there is a change in law or facts on the basis of which the advance ruling has been pronounced.
96F. Advance ruling to be void in certain circumstances. - (1) Where the Authority finds, on a representation made to it by the Commissioner of Central Excise or otherwise, that an advance ruling pronounced by it under sub-section (4) of section 96D has been obtained by the applicant by fraud or misrepresentation of facts, it may, by order, declare such ruling to be void ab initio and thereupon all the provisions of this Chapter shall apply (after excluding the period beginning with the date of such advance ruling and ending with the date of order under this sub-section) to the applicant as if such advance ruling had never been made.
(2) A copy of the order made under sub-section (1) shall be sent to the applicant and the Commissioner of Central Excise.
96G. Powers of Authority. - (1) The Authority shall, for the purpose of exercising its powers regarding discovery and inspection, enforcing the attendance of any person and examining him on oath, issuing commissions and compelling production of books of account and other records, have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908);
(2) The Authority shall be deemed to be a civil court for the purposes of section 195, but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196 of the Indian Penal Code (45 of 1860);
96H. Procedure of Authority. - The Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure in all matters arising out of the exercise of its powers under this Act.
96-I. Power of Central Government to make rules. - (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Chapter.
(2) 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:-
(a) the form and manner for making application under sub-section (1) of section 96C;
(b) the manner of certifying a copy of advanced ruling pronounced by the Authority under sub-section (7) of section 96D;
(c) any other matter which, by this Chapter, is to be or may be prescribed.
(3) Every rule made under this Chapter shall be laid, as soon as may be, after it is made, 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 both Houses agree that the rule should not be made, the rule 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.
