Changes under Service Tax in Budget 2015 detailed Analysis Clause by Clause By CA Bimal Jain & Team

A. Hike in Service tax rates (From date to be notified): · Service tax rate has been increased f...

A. Hike in Service tax rates (From date to be notified):

• · Service tax rate has been increased from 12.36% (including Education Cess and Secondary and Higher Education Cess) to flat 14%. The ‘Education Cess’ and ‘Secondary and Higher Education Cess’ shall be subsumed in the new Service tax rate. The revised rate shall come into effect from a date to be notified.
• · An enabling provision is being made to empower the Central Government to impose a Swachh Bharat Cess on all or certain taxable services at a rate of 2% on the value of such taxable services. The proceeds from this Cess would be utilized for Swachh Bharat initiatives. This Cess will be effective only from a date to be notified;

B.                 Changes In Chapter V Of The Finance Act, 1994 (Will Come Into Force When the Finance Bill, 2015 is enacted):-

                    

I.                   Changes in relation to the Negative List – Section 66D of the Finance Act, 1994:-

·                     Section 66D(a): Presently, services provided by Government or a local authority, excluding certain services specified under Section 66D(a) of the Finance Act, 1994 are covered under the Negative List. Further, by virtue of clause (iv), Service tax applies on the ‘support services’ provided by the Government or local authority to a business entity under Reverse Charge.

Under clause (iv) of Section 66D(a) of the Finance Act, 1994, the words ‘support services’ has been proposed to be substituted by the words ‘any service’ to exclude all services provided by the Government or local authority to a business entity from the Negative List by amending Section 66D(a)(iv) of the Finance Act, 1994.

In other words, after such amendment, all services provided by the Government or local authority to a business entity would be exigible to Service tax, except for the services that are specifically exempted, or covered by any another entry in the Negative List.

·                     Section 66D(f): Section 66D(f) of the Finance Act, 1994 has been proposed to be substituted to exclude any service by way of carrying out any processes for production or manufacture of alcoholic liquor for human consumption under the Service tax net. In other words, Service tax shall be levied on contract manufacturing/ job work for production of alcoholic liquor for a consideration.

At present, Section 66D(f) of the Finance Act, 1994 covers service by way of any process amounting to manufacture or production of all the goods.

·                     Section 66D(i): Explanation inserted whereby the expression “betting, gmbling or lottery shall not include the activity as specified in substituted explanation 2 to Clause (44) of Section 65B.

·                     Section 66D(j): Proposed to be Omitted. At present, it covers ‘admission to entertainment event or access to amusement facility’.

Consequently, Service tax to be levied on the services provided by way of access to amusement facility such as rides, bowling alleys, amusement arcades, water parks, theme parks, etc;

Service tax to be levied on services by way of admission to entertainment event of concerts, non-recognized sporting events, pageants, music concerts and award functions, if the amount charged for admission is more than Rs. 500.

Whereas Services by way of admission to exhibition of the cinematographic film, circus, dance, or theatrical performances including drama, ballets or recognized sporting events shall continue to be exempt; [Read with the Notification No. 6/2015-ST dated 01-03-2015 vide which changes has been made in the Mega Exemption List of Services). 

II.        Other Important Changes in the Finance Act, 1994:-

1.                 Changes in Advance Ruling Under Section 96A(b)(iii) of the Finance Act, 1994 Vide Notification No. 9/2015-ST dated 01-03-2015:-

·                    The facility of Advance Ruling has been extended to all resident firms by specifying such firms as a class of persons for the purposed of Section 96A (b)(iii).

2.                 Other Changes:

·                    Changes in Section 65B of the Finance Act, 1994:

Ø  Definition of the terms ‘amusement facilities’ [Section 65B(9)], ‘entertainment event’ [Section 65B(24)] and ‘support services’ [Section 65B(49)] have been omitted;

Ø  Definition of following terms have been inserted:

a)       ‘foreman of chit fund’ – Section 65B(23A);

b)       ‘Government’ – Section 65B(26);

c)        ‘lottery distributor or selling agent’ – Section 65B(31A);

Ø  In the definition of ‘process amounting to manufacture or production of goods’, the words, ‘alcoholic liquors for human consumption’ has been omitted;

Ø  Explanation 2 to Section 65B(44) of the Finance Act, defining the term ‘Service’ is amended to specifically state the intention of the legislature to levy Service tax on activities undertaken by Chit fund foremen in relation to Chit, and lottery distributors and selling agents, in relation to lotteries.

·                    Changes in Section 66B of the Finance Act, 1994:

Section 66B is amended to substitute the rate of Service tax from 12% to 14%. The ‘Education Cess’ and ‘Secondary and Higher Education Cess’ shall be subsumed in the new Service tax rate. The revised rate shall come into effect from a date to be notified.

·                    Changes in Section 66F of the Finance Act, 1994:-

Section 66F(1) prescribes that unless otherwise specified, reference to a service shall not include reference to any input service used for providing such services. An illustration has been incorporated in the stated Section to exemplify the scope of this provision.

·                    Changes in Section 67 of the Finance Act, 1994:-

Explanation (a) to Section 67 is amended to specifically include the following in the definition of the term ‘Consideration’:

a)        any reimbursable expenditure or cost incurred and charged by the service provider;

b)       any amount retained by the lottery distributor or selling agent of lottery from gross sale amount of lottery ticket, or, as the case may be, the discount received, that is the difference in the face value of lottery ticket and the price at which the distributor or selling agent gets such tickets.

·                     Changes in Section 73 of the Finance Act, 1994:-

Section 73 has been amended to insert a new sub-section (1B) to provide that the Service tax amount self-assessed and declared in the return but not paid (either in part or full) shall be recovered under Section 87 thereof, without service of any notice under Section 73(1).

Further, Section 73(4A) providing for reduced penalty if true and complete details of transaction are available on specified records has been omitted.

·                     Changes in Section 76 of the Finance Act, 1994:-

Section 76 has been amended to rationalize the provisions relating to penalties in cases not involving fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or rules with the intent to evade payment of Service tax, in the following manner:

a)      Ceiling of 10% of Service tax amount on penalty has been incorporated;

b)      No penalty leviable if Service tax and interest is paid within 30 days of issuance of SCN under Section 73(1);

c)      Reduced penalty equal to 25% leviable if the Service tax, interest and reduced penalty is paid within 30 days of receipt of Order of the Central Excise Officer; and

d)      If the Service tax amount gets reduced in any Appellate proceeding, then the penalty amount shall also stand modified accordingly, and benefit of reduced penalty (i.e. 25%) shall be admissible if Service tax, interest and reduced penalty is paid within 30 days of such Appellate Order.

·                     Changes in Section 78 of the Finance Act, 1994:-

Section 78 has been amended to rationalize the provisions relating to penalties in cases involving fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or rules with the intent to evade payment of Service tax, in the following manner:

a)        Penalty shall be of 100% of Service tax amount;

b)        Reduced penalty equal to 15% shall be leviable if Service tax, interest and reduced penalty is paid within 30 days of issuance of SCN under Section 73(1);

c)         Reduced penalty equal to 25% leviable if the Service tax, interest and reduced penalty is paid within 30 days of receipt of Order of the Central Excise Officer; and

d)        If the Service tax amount gets reduced in any Appellate proceeding, then the penalty amount shall also stand modified accordingly, and benefit of reduced penalty (i.e. 25%) shall be admissible if Service tax, interest and reduced penalty is paid within 30 days of such Appellate Order.

·                     New Section 78B inserted after Section 78A of the Finance Act, 1994:-

A new Section 78B has been inserted to prescribe transition provision in the following manner:

a)      Amended provisions of Sections 76 and 78 shall apply to cases where either no notice is served, or notice is served under Section 73(1) or proviso thereto but no Order has been issued under Section 73(2), before the date of enactment of the Finance Bill, 2015; and

b)      in respect of cases covered by Section 73(4A), if no notice is served, or notice is served under Section 73(1) or proviso thereto but no Order has been issued under Section 73(2), before the date of enactment of the Finance Bill, 2015, penalty shall not exceed 50% of the Service tax amount.

·                     Section 80 of the Finance Act, 1994 that provides for waiver of penalty in certain circumstances has been omitted.

·                     Changes in Section 86 of the Finance Act, 1994:-

Section 86 has been amended to prescribe that remedy against the Order passed by the Ld. Commissioner (Appeals), in a matter involving rebate of Service tax on Input services, duty paid on Inputs, used in providing service which is exported, shall lie in terms of Section 35EE of the Central Excise Act, 1944 (i.e. Revision by the Central Government).

It is also provided that all appeals filed before the Hon’ble Tribunal after the date the Finance Act, 2012 came into effect and pending on the date when the Finance Bill, 2015 receives assent of the President shall be transferred and dealt in accordance with Section 35EE of the Central Excise Act, 1944.

·                     Changes in Section 94 of the Finance Act, 1994:-

Clause (aa) of Section 94(2) has been substituted with “determination of the amount and value of taxable service, the manner thereof, and the circumstances and conditions under which an amount shall not be a consideration, under Section 67”.

C.                  Changes in the Mega Exemption List of Services Vide Notification No. 6/2015-ST dated 01-03-2015 amending Notification No. 25/2012-ST dated 20-6-2012 (Effective From 01-04-2015 Unless Otherwise Stated):

·                    Entry 2: Scope has been enlarged - All ambulance services provided to patients are exempted. Hitherto, any service provided by way of transportation of a patient to and from a clinical establishment by a clinical establishment was exempt from Service tax.

·                    Entry 12: Exemption presently available on Services provided to the Government, a Local authority or a Governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of, shall be restricted only to:

a)        a historical monument, archaeological site or remains of national importance, archeological excavation or antiquity;

b)       canal, dam or other irrigation work;

c)        pipeline, conduit or plant for (i) water supply (ii) water treatment, or (iii) sewerage treatment or disposal

Whereas earlier Exemption as granted under this Entry is withdrawn for following:

·           a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession;

·           a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment;

·           a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause 44 of section 65 B of the said Act;

·                    Entry 14: Exemption to Services by way of construction, erection, commissioning, or installation of original works pertaining to an airport or port stands withdrawn.

·                    Entry 16: Exemption to Services provided by a performing artist in folk or classical art form of (i) music, or (ii) dance, or (iii) theatre, has been restricted only to such cases where amount charged is not exceeding Rs. 1,00,000/- for a performance (except brand ambassador).

·                    Entry 20: Exemption under Entry 20(i) Substituted, transportation of food stuff by rail or vessels from one place in India to another will be limited to milk, salt and food grains including flours, pulses and rice. [Earlier Entry 20(i): foodstuff including flours, tea, coffee, jaggery, sugar, milk products, salt and edible oil, excluding alcoholic beverages].

·                    Entry 21: Exemption under Entry 21(d) substituted, for Services provided by a goods transport agency, by way of transport in a goods carriage of, milk, salt and food grain including flours, pulses and rice. [Earlier Entry 21(d): foodstuff including flours, tea, coffee, jaggery, sugar, milk products, salt and edible oil, excluding alcoholic beverages]

·                    Entry 26A: Life insurance service provided by way of Varishtha Pension Bima Yojna is made exempted along with the following exempted at present:

a)        Janashree Bima Yojana,

b)       Aam Aadmi Bima Yojana and

c)        Life micro-insurance product as approved by the Insurance Regulatory and Development Authority, having maximum amount of cover of fifty thousand rupees.

·                    Entry 29: Exemptions have been withdrawn on the following services of:

·           Mutual fund agent to a mutual fund or asset management company;

·           Distributor to a mutual fund or asset management company;

·           Selling or marketing agent of lottery tickets to a distributer or a selling agent;

Service tax on the above stated services shall be levied under Reverse Charge Mechanism.   

·                    Entry 30: Service tax would be levied on services by way of carrying out of intermediate production process of alcoholic liquor for human consumption on job work, consequent to imposition of Service tax on services by way of manufacture of alcoholic liquor for human consumption.

·                    Entry 32: Omitted. Accordingly, exemption stands withdrawn on the following services:

a)        Departmentally run public telephone;

b)       Guaranteed public telephone operating only local calls;

c)        Free telephone at airport and hospital where no bill is issued.

·                    New Entries inserted: After Entry 42, following new Entries have been inserted:

a)     Entry 43: Services by operator of Common Effluent Treatment Plant by way of treatment of effluent;

b)     Entry 44: Services by way of pre-conditioning, pre-cooling, ripening, waxing, retail packing, labelling of fruits and vegetables which do not change or alter the essential characteristics of the said fruits or vegetables;

c)      Entry 45: Services by way of admission to a museum, national park, wildlife sanctuary, tiger reserve or zoo;

d)     Entry 46: Service provided by way of exhibition of movie by an exhibitor to the distributor or an association of persons consisting of the exhibitor as one of its members;

e)     Entry 47: Services by way of right to admission to:

i.          exhibition of cinematographic film, circus, dance, or theatrical performances including drama or ballet;

ii.        recognized sporting events;

iii.      award function, concerts, pageants, award functions, musical performances or any sporting events other than recognized sporting event, where the consideration for such admission is upto Rs. 500 per person

[Will be exempted effective from the date the amendments being made in the Negative List concerning the service by way of admission to entertainment events come into effect]

·                    New definition provided for certain terms in paragraph 2 relating definition of –

a)     ‘(xaa) “national park’ has the meaning assigned to it in the clause (21) of the section 2 of The Wild Life (Protection) Act, 1972 (53 of 1972);’;

 b)        (zab) “recognised sporting event” means any sporting event,-

(i) organised by a recognised sports body where the participating team or individual represent any district, state, zone or country;

(ii) covered under entry 11.’;

(c)   For the clause (zi), the following clauses shall be substituted, namely:-

‘(zi) “tiger reserve” has the meaning assigned to it in clause (e) of section 38K of

the Wild Life (Protection) Act, 1972 (53 of 1972);

(zj) “trade union” has the meaning assigned to it in clause (h) of section 2 of the Trade Unions Act, 1926 (16 of 1926);

(zk) “wildlife sanctuary” means sanctuary as defined in the clause (26) of the section 2 of The Wild Life (Protection) Act, 1972 (53 of 1972);

(zl) “zoo” has the meaning assigned to it in the clause (39) of the section 2 of the

Wild Life (Protection) Act, 1972 (53 of 1972).’.

D.                 Changes in Service Tax Rules, 1994 Vide Notification No. 5/2015-ST dated 01-03-2015 (Effective From 01-03-2015 Unless Otherwise Stated):-

Ø    Under Rule 2 of the Service Tax Rules, 1994:

·                    In respect of any service provided under aggregator model, the aggregator, or any of his representative office located in India, is being made liable to pay Service Tax if the service is so provided using the brand name of the aggregator in any manner. If an aggregator does not have any presence, including that by way of a representative, in such a case any agent appointed by the aggregator shall pay the tax on behalf of the aggregator. In this regard appropriate amendments under the Notification No. 30/2012-ST dated 20.6.2012 This change comes into effect immediately i.e., w.e.f. 1st March, 2015.

Further, definition of the terms ‘aggregator’ and ‘brand name or trade name’ has been specifically defined in Rule 2 of the Service Tax Rules, 1994;

·                    The term ‘support’ has been omitted from the Clause (E) providing for liability of service receiver to pay Service tax under Reverse Charge in relation to support services provided or agreed to be provided by Government or Local authority;

·                    Services provided by mutual fund agents, mutual fund distributors to a mutual fund or asset management company and agents of lottery tickets to a lottery distributor or selling agent has also been included in Rule 2(1)(d) making mutual fund/ asset management company and lottery distributor/ selling agent liable for payment of Service tax under Reverse Charge vide the Notification No. 30/2012-ST dated 20.6.2012.

Ø    Under Rule 4 of the Service Tax Rules, 1994:

·                    Rule 4 Service Tax Rules, 1994 has been amended to provide that the CBEC shall, by way of an order, specify the conditions, safeguards and procedure for registration in service tax.

In this regard Order No. 1/15-ST dated February 28, 2015, effective from March 1, 2015 has been issued, prescribing documentation, time limits and procedure for registration for single premises. It has also been prescribed that henceforth registration for single premises shall be granted within 2 days of filing of application;

Ø    New Rule 4C has been inserted after Rule 4B of the Service Tax Rules, 1994 – Corresponding changes made in Rule 5 thereof:

·                    Provision for issuing digitally signed invoices, bill or challan has been added along with the option of maintaining of records in electronic form and their authentication by means of digital signatures.

It is further provided that the conditions and procedure in this regard shall be specified by the CBEC.

Ø    Under Rule 6 of the Service Tax Rules, 1994:

·                    Rule 6(6A) of the Service Tax Rules has been omitted which provided for recovery of Service tax self-assessed and declared in the return in the manner prescribed under Section 87 of the Finance Act, 1994.

The same has been done consequent to the amendment brought in Section 73 of the Finance Act, 1994 enabling such recovery. This change will come into effect from the date of enactment of the Finance Bill, 2015.

·                    Consequent to the upward revision in Service tax rate, the composition rate is proposed to be revised proportionately under Rule 6(7), 6(7A), 6(7B) and 6(7C) of the Service Tax Rules, 1994 on specified services, namely,

-          Air Travel Agent: From “0.6%” and “1.2 %”, to “0.7 per cent.” and “1.4 per cent of Basic fares in the case of domestic bookings and international bookings respectively.

-          Life insurance service: From “3%” and “1.5%”, to “3.5%” of the premium charged from policy holder in the first year and “1.75% in the subsequent year”.

-          Money changing service provided by banks or authorized dealers: and

-          Service provided by lottery distributor and selling agent

The stated amendments shall come into effect as and when the revised Service tax rate comes into effect.

E.                  Changes in Reverse Charge Mechanism Vide Notification No. 7/2015-ST dated March 1, 2015 amending Notification No. 30/2012-ST Dated 20-6-2012 (Effective From 01-04-2015 Unless Otherwise Stated):-

·                    Services provided by,-

a)        Mutual fund agents, mutual fund distributors to a mutual fund or asset management company; and

b)        Selling or marketing agents of lottery tickets to a lottery distributor or selling agent

are being brought under the Full Reverse Charge consequent to withdrawal of the exemption on such services vide Notification No. 6/2015-ST dated 01-03-2015 (supra)

·                    Manpower supply and Security services provided by an individual, HUF, partnership firm or association of persons to a business entity registered as body corporate have been brought under Full Reverse Charge as against Partial Reverse Charge mechanism applicable at present.

·                    In respect of any service provided under aggregator model, the aggregator, or any of his representative office located in India have been made liable to Service Tax under Full Reverse Charge if the service is so provided using the brand name of the aggregator in any manner.

·                    Under sub clause (iv) in Item C, the term ‘support’ has been omitted for services provided or agreed to be provided by Government or Local authority from a date to be notified by the Central Government.

F.                  Changes In Abatement Notification No. 26/2012-ST Dated 20-6-2012 Vide Notification No. 8/2015-ST Dated 01-03-2015 (Effective From 01-04-2015):-

·                    A uniform abatement of 70% has been prescribed for transport by rail, road and vessel to bring parity in these sectors. Service tax shall be payable on 30% of the value of such service subject to a uniform condition of non-availment of Cenvat credit on Inputs, Capital goods and Input services.

Presently, Service tax is payable on 30% (in case of rail transport)/ 25% (in case of road transport)/ 40% (in case of transport by vessels). Further, there is no condition for availment of Cenvat credit on Inputs, Capital goods and Input services in case of transport by rail, which is now withdrawn.

·                    The abatement for classes other than economy class (i.e. business/ first class) has been reduced from 60% to 40%. Accordingly, Service tax would be payable on 60% of the value of such higher classes.

At present, Service tax is payable on 40% of the value of transport of passenger by air for economy as well as higher classes (i.e. business/ first class)

·                    Abatement for the services provided in relation to Chit fund stands withdrawn. Consequently, Service tax shall be paid by on full consideration received by the Chit fund foremen.

G.                 Notification No. 42/2012-ST dated. 29.6.2012 rescinded vide Notification No. 3/2015-ST dated. March 1, 2015:

·                    Definition of ‘Intermediary’ has been amended vide the Place of Provision of Services Rules, 2012 (“The POP Rules”) Vide Notification No. 14/2014-ST Dated 11-7-2014 (Effective from October 1, 2014) to include intermediary of goods in its scope at par with Intermediary for services. Accordingly, an intermediary of goods, such as a commission agent or consignment agent shall be covered under Rule 9(c) of the POP Rules instead of Rule 3 of the POP Rules. Existing exemption, vide Notification No. 42/2012-ST dated 29.6.2012, to the service provided by a commission agent located outside India to an exporter located in India is being rescinded with immediate effect. This exemption has become redundant in view of the above amendments made in the previous budget, in the definition of “intermediary” in the POP Rules, making the place of provision of a service provided by such agents as outside the taxable territory.

H.                Exemption widened on Service provided by road for transport of export goods by road from the place of removal to a land customs station (LCS) vide Notification No. 4/2015-ST dated. March 1,2015 (Effective From April 1, 2015):

·                     Goods transport agency service provided for transport of export goods by road from the place of removal to an inland container depot, a container freight station, a port or airport is exempt from Service Tax vide notification No. 31/2012-ST dated 20.6.2012. Scope of this exemption is being widened to exempt such services when provided for transport of export goods by road from the place of removal to a land customs station (LCS).

I.                   Amendment in Cenvat Credit Rules, 2004 (“the Cenvat Credit Rules”) vide Notification No. 6/2015-Central Excise (N.T) dated 1-3-2015:

·                Changes in Rule 4 of the Cenvat Credit Rules:

Ø   Cenvat credit of inputs can be taken immediately where the inputs are directly sent to the job workers premises in pursuance of the direction of the manufacturer or output service provider.

Ø   Cenvat credit on capital goods can be taken immediately where the capital goods are directly sent to the job workers premises in pursuance of the direction of the manufacturer or output service provider

Ø   Cenvat credit shall now be taken within one year of the issue of any documents specified in Rule 9(1) of the Cenvat Credit Rules, whereas, earlier, it was 6 months’.

·                Changes in Rule 5 of the Cenvat Credit Rules:

“Exports goods” now be defined in Rule 5, which means any goods which are to be taken out of India to a place outside India.

·                Changes in Rule 6 of the Cenvat Credit Rules:

Explanation-1 and Explanation-2 inserted in sub-rule 1: For the purpose of this Rule, Non excisable goods covered within the definition of the exempted goods or final products as defined in clauses (d) and (h) of Rule 2 of the Cenvat Credit Rules.

·                Changes in Rule 14 of the Cenvat Credit Rules:

Recovery of CENVAT credit wrongly taken or erroneously refunded: –

(1)         (i) Instances where the CENVAT credit has been availed wrongly but not utilised, the same shall be recovered from the manufacturer or the provider of output service in terms of the provision of the Section 11A of the Excise Act or Section 73 of the Finance Act, 1994, as the case may be, shall apply mutatis mutandis for effecting such recoveries;

(ii) instances where the CENVAT credit has been availed and utilised wrongly or has been erroneously refunded, the same shall be recovered along with interest from the manufacturer or the provider of output service in terms of the provisions of Sections 11A and Section 11AA of the Excise Act or Sections 73 and 75 of the Finance Act, 1994, as the case may be, shall apply mutatis mutandis for effecting such recoveries.

(2)         For the purposes of sub-rule (1), all credits taken during a month shall be deemed to have been taken on the last day of the month and the utilisation thereof shall be deemed to have occurred in the following manner, namely: -

(i) the opening balance of the month has been utilised first;

(ii) credit admissible in terms of these rules taken during the month has been utilised next;

(iii) credit inadmissible in terms of these rules taken during the month has been utilised thereafter

·                     Changes in Rule 15 of the Cenvat Credit Rules:

In the said Rule 15, with effect from the date on which the Finance Bill, 2015 receives the assent of the President, Penalty provisions are changed appropriately as the case may be in terms of Section 11 AC of the Excise Act or Section 78 of the Finance Act.

CA Bimal Jain

A2Z Taxcorp LLP | TAX AND LAW PRACTITIONERS

Tel: +91 11 22757595; E-mail: info@a2ztaxcorp.com