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Articles
Artefacts
Case Law Summary
Cenvat Credit:
Tantech Agro Chemicals Ltd Vs. CCE
Sri Eshwari Auto Components Pvt. Ltd. Vs. CCE
Service Tax:
Jain Irrigation System Ltd Vs. CCE
M/s S B Engineers Vs. CCE, ST & Customs
Trans Engineers India Pvt. Ltd. Vs. CCE
Vidharbha Iron and Steel Co Ltd. Vs. CCE & Customs
The Cricket Club of India Ltd. Vs. Comm. Service Tax
M/s Karur K C P Packaging's Ltd. Vs. Asst. Comm. Of Customs
The manufacturing industries depend now a days stick to their core competencies and get most
jobs done on outsourced basis. The sending of raw materials/semi-finished materials for some
process as per the directions of principal manufacturer is known as job work. The industries
who undertake the work of job work should be aware of the provisions under central excise and
service tax applicable to them, so that can be compliant and not face demands of levy or excess
availment of credit.
Even principal manufacturer should be aware of the provisions applicable for job work not only
for the purpose of enabling them to plan their processes effectively but also to cut
manufacturing costs.
Meaning of Job work under Central Excise
Job work is defined in Notification No. 214/86 dated 25.03.1986
Explanation I. - For the purposes of this notification, the expression "job work" means
processing or working upon of raw materials or semi-finished goods supplied to the job
worker/ so as to complete a part or whole of the process resulting in the manufacture or
finishing of an article or any operation which is essential for the aforesaid process.
And under Rule 2(n) of the Cenvat Credit Rules, 2004
(n) "job work" means processing or working upon of raw material or semi-finished goods
supplied to the job worker, so as to complete a part or whole of the process resulting in the
manufacture or finishing of an article or any operation which is essential for aforesaid process
and the expression "job worker" shall be construed accordingly;
If one were to go by the definition of the term “job work”, it is evident the raw materials have to
be supplied by another person. In Prestige Engineering India Ltd v CCE Meerut, - 1994 (9)
TMI 66 -SC, the Supreme Court held that when the job worker contributed his own material to
the goods supplied by the customer and engaged in manufacturing, the activity was not one of
job
IDT
12
Indirect Tax Impact - Job work
work. However, minor additions by the job worker would not take away the fact that the activity
was one of job work
Job Work and Manufacture (under Central Excise)
Since excise duty is on ‘manufacture’, duty liability arises only when the goods are
manufactured during job work. The test as to whether the process amounts to manufacture or
not would be determined as per section 2(f) of Central Excise Act, 1944 which is relevant
defines manufacture as including any process incidental or ancillary to the completion of the
manufactured product….. Various decision of the Supreme Court have arrived at a conclusion
that where the product undergoes a change whereby a new article having a distinctive name,
character or use emerges or not from the said process in manufacture ( Delhi Cloth and
General Mills Co. Ltd Vs UOI 1962 (10) TMI 1 -SC)
If the process undertaken by the job worker amounts to manufacture/ deemed manufacture as
per the definition or decided case laws, the job worker would be liable to pay duty of excise on
the goods so manufactured unless the principal manufacturer who has supplied him the goods
for job work, furnishes a declaration under Notification No. 214/86 dated 25.03.1986 which
exempts goods manufactured by a job worker from duty of excise provided the said goods after
job work are returned to the principal or cleared for export or cleared for home consumption
on payment of duty of excise. Where the goods are returned to the principal, the principal
should either clear it on payment of duty or use it in his manufacturing process which should
result in a dutiable product being manufactured.
The declaration as stated above should be given to the Assistant Commissioner of Central Excise
who has jurisdiction over the factory of the job worker. This is rarely done in practice.
If the principal manufacturer sending the goods for job work activity is a SSI unit, availing the
benefit of exemption, the benefit of Notification No. 214/86 dated 25.03.1986 cannot be
claimed by the job workers, as the person sending the raw materials would not be paying duty
IDT
13
Indirect Tax Impact - Job work
of excise on the final products. For these purposes, Notifications 83/94 and 84/94 have been
issued. The said notification provides exemption to job worker from payment of duty of excise
in such cases.
Job work & SSI exemption
Notification No. 214/86 CE (NT) specifies that where the job worker also avails the benefit of
notification 8/2003 CE (NT) dated 01.03.2003, the job work done under this notification
would not be included for the purpose of determining whether or not his turnover has
exceeded the said limit of Rs. 150 lakhs for the purpose of determining duty liability if any or Rs.
400 lakhs for the purpose of determining eligibility to exemption u/n 8/2003 CE in the
subsequent financial year.
Job work under Service Tax
Where the processing undertaken by the job worker does not amount to manufacture, the said
job worker could be liable to service tax.
Prior to Negative list regime [1.7.2012]:
Service Tax on job work where the process does not amounts to manufacture was levied under
‘Business Auxiliary Service’ as per which, the activity of production or processing of goods for,
or on behalf of the client would be taxable. The liability in terms of job work can arise where the
processing is done for the client. However one should note that where the processing amounts
to manufacture, the same would not be taxable under service tax and the liability if any would
have to be studied under Central Excise. Even if the taxability of the processing is to be seen
under Business Auxiliary Service, the job worker would be entitled to exemption from service
tax under notification 8/2005 ST where the goods after processing are returned to the principal
for use in or in relation to manufacture of dutiable goods which are cleared on payment of duty
of excise. Where the goods to be cleared by the principal are exempted goods or goods which
are chargeable to nil rate of duty, the exemption to the job worker under 8/2005 ST would not
IDT
14
Indirect Tax Impact - Job work
be available and he would be liable to service tax.
Post Negative list regime (after 01.07.2012):
Even after introduction of negative list, we require to refer rule 2(n) of Cenvat Credit Rules,
2004 for understanding what is job work.
Under Negative list regime, one should analyze the negative list which contains 17 services
which are out of the purview of service tax. As per Section 66D(f) of the Finance Act, 1994 any
process amounting to manufacture or production of goods is not taxable service.
Accordingly, it is clear that if the process amounts to manufacture, then no service tax liability
arises.
Further what is “Process amounting to manufacture or production of goods”, which is defined
under section 65B(40)of act, means,
a process on which duties of excise are leviable under section 3 of the Central Excise Act, 1944
or any process amounting to manufacture of alcoholic liquors for human consumption, opium,
Indian hemp and other narcotic drugs and narcotics on which duties of excise are leviable
under any State Act for the time being in force.
Hence, it is clear that even under negative list regime, if the process amounts to manufacture
service tax is not application and one should refer negative list serial number (f) for the same.
Next, what happens if the process does not amount to manufacture; the job worker should refer
to the exemption provided in Notification No. 25/2012 ST 20.06.2012 (called as Mega
Exemption Notification). As per the said Notification, job work in relation of any goods on
which appropriate duty is payable by the principal manufacturer, is exempted.
What is appropriate duty? Which is defined in the Notification and accordingly it means “duty
payable on manufacture or production under a Central Act or a State Act, but shall not include
‘Nil’ rate of duty or duty wholly exempt”.
IDT
15
Indirect Tax Impact - Job work
Job work & Cenvat Credit
a) The concept of cenvat credit is relevant from the angle of principal manufacturer who sends
the raw material / semi-finished goods for job work. The principal manufacturer can avail
the Cenvat credit on materials sent for job work as per rule 4(5)(a) of the Cenvat Credit
Rules, 2004.
b) This has to be established from the records, challans or memos or any other document
produced by the manufacturer taking the Cenvat credit that the goods have been received
back in the factory within 180 days of goods being sent to the job worker. Therefore
maintenance of proper inventory accounting records, job work register, details of nature of
processing undertaken and quantities received back along with scrap generated would gain
importance.
c) The movement should be under a challan giving the particulars as to the Rule under which
the same is being sent. The challan would be in triplicate with two copies of the same
accompanying the goods to the job worker who would return one copy with the goods being
sent back to the principal after completion of the process. Where the goods are sent back in
lots, he is free to send his own delivery challan with the goods and send back the original
delivery challan received from the principal, with the final consignment being sent to the
said principal.
d) If the inputs or the capital goods are not received back within one hundred and eighty days
or two years, the manufacturer shall pay an amount equivalent to the Cenvat credit
attributable to the inputs or capital goods by debiting the Cenvat credit account with the
amount so attributable to the inputs or capital goods not received. But the manufacturer can
take once again the Cenvat credit so debited when the inputs or capital goods are received
back in his factory.
The restriction with regard to the requirement of receiving the goods back within 180 days
from the date of sending would not apply to such tools, dies, fixtures and moulds.
IDT
16
Indirect Tax Impact - Job work
The job worker who is paying the service tax or working under Notification No. 214/86 where
he carries out processes which are part of manufacture, can also avail the credit on inputs and
consumables and pay the service tax leviable thereon
Manufacturer can avail the credit on inputs directly sent to job worker from supplier for
processing. In effect there is no requirement of reversal where goods reach the factory or premises
of service provider within 180 days from date of removal to the first job worker.
Valuation under Central Excise – Job Worker
Prior to 2007 valuation of job work was as per the ratio of Ujagar Prints 1989 (1) TMI 124 -
SUPREME COURT OF INDIA case; It was clearly held that in respect of goods manufactured on
job-work basis, assessable value would be the job charges (including the profit of the job-
worker if not already included in the job-charges) plus the cost of the materials used in the
manufacture of the item (including the cost of the materials supplied free of cost to the job-
worker).
Rule 10A had been introduced in Central Excise Valuation (Determination of Price of Excisable
goods) Rule 2000, vide Notification No. 9/2007-C.E. (N.T.) dated 1.3.2007 in respect of the
goods produced or manufactured by Job Worker which stipulate that,
• Where the goods are sold by the raw material supplier/principal manufacturer from the
factory of job worker - the value would have to be the transaction value of the goods so sold
by the raw material supplier/principal. This will apply only when the raw material supplier
and the buyer of the goods are not related and price is the sole consideration for the sale and
the goods are sold for delivery at the time of removal from the job worker's factory.
• In a case where the goods are not sold by the principal manufacturer at the time of removal
of goods from the factory of job-worker, but are transferred to some other place from where
the said goods are to be sold after their clearance from the factory of the job worker - the
normal transaction value of such goods sold from such other place at or about the same time
has to be adopted. This, in other words follows the principle of depot based valuation under
IDT
17
Indirect Tax Impact - Job work
Central Excise applicable where goods are cleared to depots of manufacturers and sold
therefrom. Where such goods are not sold at or about the same time, then the normal
transaction value of such goods at the time nearest to the time of removal of said goods from the
factory of job worker is to be adopted. The cost of transport from the premises where from the
goods are sold, to the place of delivery, would not be included in assessable value.
Precautions to be taken by the principal manufacturer generally
The principal manufacturer is responsible for the duty payment on the scrap generated at the
job worker’s premises. The job worker may also remove such scrap on payment of appropriate
duty of excise and in which case principal manufacturer will be relieved from his duty liability.
The principal manufacturer should therefore have a proper mechanism for the purpose of
tracking the quantum of waste or scrap generated at the job worker's premises.
Further, the principal manufacturer availing the benefit of cenvat credit should maintain proper
records to prove that the material are received within 180 days/2 years as per Rule 4(5)(a) of
Cenvat Credit Rules, 2004. In case not received the reversal of cenvat credit attributable to such
materials and once such material received back (that is after 180 days) credit should be taken
back. To comply with these provisions the principal manufacturer requires to maintain proper
job work control register plus security records (returnable).
Job work under K VAT
One of the essential differences between central excise and VAT as far as taxability of job work
transaction is concerned is that while central excise is a duty on manufacture; VAT is a levy on
sale of goods which occurs subsequent to manufacture. Where there is transfer of property in
goods, VAT would be on the value of such transfer of property in goods going by the concept of
deemed sale under Article 366(29A) of the Constitution of India which covers such transfer of
property in goods involved in the execution of ‘works contract’.
IDT
18
Indirect Tax Impact - Job work
Please note the decision in Prestige Engineering (India) Ltd. v CCE Meerut (1994 (73) ELT
497 (SC)) where it held a transition involving contribution of material from the job worker
himself could not be regarded as one of job work at all unless the contribution was minor in
relation to the entire contract. This would however have no impact on the position under VAT
law.
The value would included the cost of the materials supplied free of cost by the principal
manufacturer plus the job worker’s own conversion costs as confirmed by the Ujagar Prints v
UOI (1988 (38) ELT 535 (SC)). This scheme of valuation would not be applicable to VAT as the
levy is every sale and would be attracted whenever there is transfer of property in goods. In
case of job work, VAT would be applicable only when the job worker adds his own materials and
would be on the amount charged for such transfer of property in goods.
GST Transitional
Goods lying at job-workers premises - In the ordinary course of business, goods are sent to
job-work for further processing. It is possible that on the date of implementation of GST, the
goods are lying with job-worker. Transitional provisions are required to ensure that an
Assessee’s right to credit of appropriate tax paid on goods lying in stock with the Job-worker is
made available as Transitional Credit.
The possible situations with respect to goods lying at job-worker’s premises are
i. The goods (after being processed) are lying at job-worker’s premises on the
implementation date and would be returned back to the principal
ii. The goods are being used by the job-worker for further processing
iii. The goods are in the nature of capital goods
Reversal of Credit - Manufacturer should be eligible for credit reversed in pre GST period due
to non receipt of goods from job worker within 180 days. The credit on stock with the job
IDT
19
Indirect Tax Impact - Job work
worker within 180 days. The credit on stock with the job worker therefore should be allowed.
Carry forward of stock as on transition date - As on the transition date, an Assessee may
have stock of goods in the nature of raw material, packing material, consumable, stores, fuels,
semi-processed goods, finished goods and capital goods lying. The said stock including capital
goods may be subject to GST on subsequent supplies. Transition provisions are required to
provide a clear procedure for transitional credit on such stocks including on capital goods.
Take away for readers
Clearance of goods to job workers, does not amount to removal of exempted goods, and
provisions of Rule 6 of Cenvat credit rules, 2004 does not apply.
When working under Notification no. 214/86 where the principal is paying the duty, the job
worker is eligible for the credit on inputs used in processing the goods sent back without
payment of excise duty or service tax.
The treatment of scrap arising at the job workers end many a time creates disputes and
therefore needs to be properly accounted.
Many times the mould, tools and dies which can be quite expensive are lying unreturned at
the job worker promises much after the job work has been discontinued.
It may be preferable that the job worker pays the service tax by utilising the credit on capital
goods, input and input services, especially where there is credit available significantly at job
workers end.
- CA Prakash N
IDT
20
Tantech Agro Chemicals Ltd Vs. CCE
2015-TIOL-1982-CESTAT-MAD
Fact: Appellants are manufacturers of pesticides namely "Monocrotophos" (Technical Grade)
who classified the goods under Heading 3808.10 and cleared on payment of appropriate rate or
duty - Consequent to an intervention by the DGCEI, the department proposed to reclassify the
goods under Chapter Heading 2942.00 and demand differential duty; the proposals were
dropped in adjudication and the appellants took suo motu re-credit of deposit amount paid by
them - Notice was issued proposing its recovery as erroneously availed credit, with interest and
penalty
Issue: Whether suo motu credit taken by the appellant after favourable order by Commissioner,
without filing refund claim under Section 11B is correct or not and whether recovery of such
credit ordered by the Department is valid
Decision: Lump sum amount paid by the appellant during investigation is not the duty amount
calculated by the department but only deposit made by the appellants pending investigation
proceedings, which cannot be construed as excise duty paid. The question of refund claim under
Section 11B and time-bar and unjust enrichment does not arise
Case Law Summary -Cenvat Credit
Sri Eshwari Auto Components Pvt. Ltd. Vs. CCE
2015-TIOL-1975-CESTAT-MAD
Fact: Unit-I of the appellant procured capital goods like Grinding Machine, Thread Rolling, Air
Compressor, Power Press hydraulic Cutting etc. from various suppliers and installed in their
Unit-II and Shop-II, for executing job work for Unit-I. Out of 13 machines, 5 machines were
returned and subsequently cleared to new plant on payment of duty and remaining 8 were
installed in Unit II and Shop-II - Unit-I requested for inclusion of the premises of Shop-II with
the main unit which is still pending. ?
Issue: Whether appellant required to reverse credit as per Rule 4(5)(a) of CCR?
21
Decision: There is no dispute that these two units belong to them and exclusively doing the job
work for main unit and they are not independent job workers. Therefore, by respectfully
following above Apex Court decision and considering the fact that there was no recovery
mechanisms built in CCR for recovery of capital goods credit prior to 1.3.2013, court held that
appellants are eligible for capital goods credit installed at /their own units for job work
purpose.
Comments: Time limit for capital goods sent for job work has extended from 180 days to 2
years as per amended rule 4(5) of CCR.
Case Law Summary -Cenvat Credit
Jain Irrigation System Ltd Vs. CCE
2015-TIOL-1892-CESTAT-MUM
Fact: Service provider and service recipient both are located in India and they are entered into
contract of service, in which, part of service is rendered in India and place of removal/Port
located in India and part of service is discharged for Port of destination and beyond or outside
India. Service tax has been charged on both the services wrongly.
Issue: Whether department can deny refund of amount paid wrongly on activities performed
on in foreign port under notification 17/2009 ST read with 41/2007 ST?
Decision: When once there was no compulsion or duty cast to pay this service tax, the amount
paid by petitioner under mistaken notion, would not be a duty or "service tax" payable in law.
Therefore, it is outside the purview of Section 11B of the Act.
Comments: No amount can be collected from the assessee by the Revenue if it is not in
accordance with the tax law, as has been provided under Article 265 of the Constitution of India.
Sri Eshwari Auto Components Pvt. Ltd. Vs. CCE
2015-TIOL-1975-CESTAT-MAD
Case Law Summary –Service Tax
22
Trans Engineers India Pvt. Ltd. Vs. CCE
2015-TIOL-1947-CESTAT-MUM
Fact: Department audit has done during 2006 and no short payment was noticed from records.
During 2008 department held another audit for same/overlapping period.
Issue: Can department invoke extended period of limitation when the records of the assessee
were audited by the officers once and no short payment noticed?
Decision: Extended period cannot be invoked for demanding service tax from the appellant.
Case Law Summary –Service Tax
M/s S B Engineers Vs CCE, ST & Customs
2015-TIOL-1984-CESTAT-AHM
Issue; Whether assessee is required to pay an amount equivalent to 8% or 6% with respect to
exempted activities undertaken by job worker which are exempted under Notfn 8/2005?
Decision: Job work activity of the appellant is amounting to manufacture and is not one of
providing any 'service'. The appellant factory cannot be both a 'manufacturer' and a 'service
provider' at the same time in relation to a particular activity. It is settled proposition in central
Excise matters that a job worker is a 'manufacturer' and hence the appellant factory cannot be
treated as a service provider rendering exempted/non-taxable service for the manufacturing
activity.
Provisions of Rule 6(1) of CCR, 2004 cannot be invoked for denying Cenvat credit of input
services used by assessee for manufacture of job-worked goods
23
Vidharbha Iron and Steel Co Ltd. Vs. CCE &
Customs
2015-TIOL-1992-CESTAT-MUM
Fact: Appellant had, as per arrangement and order of the Bombay High Court, rented out the
factory premises to FACOR Company and were discharging Service Tax liability on Renting of
Immovable property. As per the scheme of arrangement, employees of the appellant were to
work for FACOR and the salaries and wages along with the government dues were to be
reimbursed at actual to the appellant.
Issue: Whether amount received by appellant is taxable under the category of ‘Manpower
Recruitment and Supply Agency service?
Decision: ST demand not sustainable as there is nothing on record to show that the appellant
functioned as a commercial concern engaged in supply of manpower to FACOR
Comments: It is advisable to check the power of supervision and direction is with whom to be
determine whether it is manpower supply or not.
- CA Prakash N
Case Law Summary –Service Tax
The Cricket Club of India Ltd. Vs. Comm.
Service Tax
2015-TIOL-2062-CESTAT-MUM
Fact: Assessee collected the onetime payment that is visited upon members of clubs or
association and offered to tax under inclusive basis on which service tax not leviable. Claim
refund of amount deposited
Issue: Whether tax paid under inclusive basis does amount to transfer of tax burden?
Decision: Service tax so paid does not carry the taint of unjust enrichment.
- CA Prakash N
24
M/s Karur K C P Packaging's Ltd. Vs. Asst. Comm.
Of Customs
2015-TIOL-2137-HC-MAD-CUS
Fact: Writ Petition has been filed by appellant demanding interest of 18% on delayed duty
drawback for the period 18.02.2010 to 24.09.2010 as per section 75A of Customs Act 1962.
Issue: Can interest on delayed duty drawback claimed?
Decision: A perusal of Section 75A of the Customs Act, 1962 goes to show that where any
drawback payable to the claimant is not paid within a period of one month from the date of
filing a claim for payment of such drawback, interest at the rate fixed under Section 27-A from
the date after the expiry of the said period of one month is payable to the petitioner. Writ
Petition is allowed.
Case Law Summary –Interest on delayed duty
drawback
Philips India Ltd Vs. Commercial Tax Inspector
2015-TIOL-2240-HC-KERALA-VAT
Fact: Assessee who has imported goods into Chennai and was transporting the said imported
goods to Kerala for delivery to the consignee, has not established that the goods were purchased
in the course of import at Chennai
Issue: Whether assessee was obliged to discharge the liability under the CST Act in Chennai or
Kerala?
Decision: Assessee liable to discharge CST in Chennai.
Case Law Summary- Central Sales Tax
25
CCE Vs. Pragathi Concrete Products (P) Ltd.
2015-TIOL-223-SC-CX
Fact: Fact: Show cause notice was issued in the instant case by the Department on 01.02.2000
and it covered the period from 01.01.1995 to 31.08.1999. The Department had invoked the
provisions of extended period of limitation on the ground that there was some misstatement
and suppression on the part of the respondent herein
Issue: Whether department can invoke extended period of limitation?
Decision: Department had not taken any action for more than five years; It is also found as a
matter of fact, that the unit of the respondent was audited during this period several times and
there were physical inspections by the Department as well. Therefore, there could not be any
case of suppression. Hence department can not invoke limitation period.
Case Law Summary –Central excise –
Limitation period
M/s. Parag Enterprises Vs. CCE
2015-TIOL-2024-CESTAT-ALL
Fact: Assessees are manufacturing Liquid Shoe Finish and Liquid Shoe Polish bearing a
brand name 'TEGU', which is the brand name of M/s TEGU Chemische Fabrik Theysohn,
Germany. On an application, Trade Marks Registry, Government of India, Mumbai has registered
trade mark ‘TEGU’ in the name of Parag Enterprises, Agra As the application was made in 1996,
therefore, assessee were legally owning brand name ‘TEGU’ right from 1996.
Issue: Exemption can be availed under notification 08/2003 on goods removed under brand
name?
Decision: The Central Excise Act is applicable throughout the territory of India only. The
petitioner is using its own trade mark in India and not of somebody else. Therefore, the
allegation that the petitioner is using somebody else’s trade mark militates against the
provisions of the Trade & Merchandise Act, 1958 which are applicable throughout the territory
of India. Exemption is rightly available to assessee.
- CA Prakash N
26
Mettur Thermal Power Station Vs. CCE
Background
Petitioner engaged in generation of electricity and during generation fly ash and fly ash bricks
were produced. Show cause notice was issued to petitioner towards non payment of excise duty
on fly ash and fly ash bricks. Petitioner filed writ petition challenging the levy.
Issue
Whether Central Excise duty is payable on flying ash arising during generation of electricity?
Decision
Fly ash has not undergone any process of manufacture. Merely because the rate of duty is ‘Nil’ in
tariff, electricity is not exempted goods. Therefore, the benefit of notification no.89/95 is rightly
eligible as ‘fly ash’ is waste generated during generation of electricity. Further, ‘fly ash’ does not
involve any manufacturing activity and therefore, cannot be subjected to Excise duty. However,
‘fly ash brick’ involves manufacturing process and therefore, the same is liable for excise duty.
- CA. Mahadev R
Case Law Summary –Central Excise
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Notifications/Circulars
Service tax levy on services provided by aGoods Transport Agency
In this note some of the common errors to avoid are discussed.
Job work considered as Manpower
Some service receivers (SR) consider job work contracts as manpower supply and pay service
tax under reverse charge mechanism (RCM) under the category of manpower supply services.
Manpower supply means supply of manpower, temporarily or otherwise, to another person to
work under his superintendence or control. Job work contractors are the ones who work
independently by using their own skills and expertise and are not guided by the principal
employer. For example painting, construction work, electrical fitting etc:-
Valuation of ESI, PF for service tax
Service tax is to be charged on the full amount of consideration for the supply of manpower.
Hence, the assessee who is required to pay ESI, PF, under law, shall include such charges for
discharging service tax under reverse charge mechanism unless the same is recovered as “pure
agent”.
For more details, please go through Circular No. 185/4/2015-S.T., dated 30-6-2015.
Manpower Recruitment treating as Manpower supply services
In few cases it is also noticed that, SR treats manpower recruitment services as manpower
supply service and pay service tax under reverse charge mechanism. Service tax liability on
RCM is only on manpower supply services and not on manpower recruitment services.
75% of bill value taken for payment of service tax
SR in few cases pay ST on 75% of the bill value. However this provision has been changed from
01.01.2015 increasing to 100%.
Considering cleaning/housekeeping contract for reverse charge
Some SRs are paying ST on cleaning/housekeeping contracts under RCM. Where the contract is
for executing cleaning service, then it is a cleaning contract and not a manpower supply
contract. Company is not liable under reverse charge.
Common errors under Manpower
supply/Security services
Gems from Audit
35
Business entity registered as body corporate. Whether liable under RCM?
It’s widely noticed that, many non - profit organisations/trusts/co – operative societies are
paying service tax under reverse charge mechanism.
Supply of manpower services, only by any individual, Hindu Undivided Family or partnership
firm, whether registered or not, including association of persons, located in the taxable territory
to a business entity registered as body corporate, located in the taxable territory are liable
for service tax.
“Business entity” means any person ordinarily carrying out any activity relating to industry,
commerce or any other business or profession.
Since, non profit organisations/trusts/co – operative societies are not incorporated for making
profit, they are not liable under reverse charge.
Not considering detective nature services as security services
Some SRs do not consider investigation, detection or verification, of any fact or activity services
for service tax payment under reverse charge.
Security services are those 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.
Exemption in case services received relating to agriculture or agriculture produce
In this regard, SRs to exercise due care in analysing what the term agriculture or agriculture
produce means and whether the services procured are used on primary market or secondary
market of products.
Issues relating to reverse charge
1) The small service provider exemption of Rs 10 lakhs not available when tax is payable under
reverse charge.
2) Cenvat credit cannot be used to pay tax by service receiver. Service tax has to be paid by cash
only i.e. GAR-7 challan.
Common errors under Manpower
supply/Security services
Gems from Audit
36
3) Once paid, Cenvat credit can be taken if it is eligible ‘input service’.
4) Tax should be paid under service tax registration number of service receiver and included in
his return as he is liable to pay service tax.
5) Service tax is payable by service receiver when actual payment is made to service provider
and not on receipt of invoice from service provider. However, if payment is not made to service
provider within 3 months, service tax is anyway payable. Interest is also payable.
6) Exception is that when service provider is outside India, and is an associated enterprise
(Group Company with at least 25% common interest), the service receiver is liable to pay
service tax as soon as the account of service provider is credited in books of account of service
receiver.
Conclusion: Complying under provisions of “Reverse charge and Joint charge mechanism” is tedious job from its inception. However, avoidance of complying with the law would invite demands and penalties at later stages.
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Announcements
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Going Forward-New areas of training
Reference Books for IDT
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38
Founded on the pedestal of knowledge sharing and employability initiative,
Hiregange Academy has taken baby step sin the field of empowerment,
presently in the field of indirect taxes.
It has conducted more than 27 workshops/ seminars/ training, attended by
more than 1800 delegates.
Hiregange Academy has published over 10 books/ booklets on Service Tax,
Central Excise, Foreign Trade Policy, etc. All freely downloadable.
It has also conducted training for faculties.
Videos of concluded seminars videos are available freely on YouTube for
easy access of information to all.
Moving ahead, we wish to skill in areas beyond Indirect Taxes. Therefore
request the readers to suggest for further areas of training, which can be
provided by Hiregange Academy, like:
• Office Communication
• Training in Tally
• Company Law
• Corporate tax/TDS compliance under Income Tax Act.
• Any other ( please specify)
For any other area of training and for further suggestions, please send your