TIOL-DDT 2194
20.09.2013
Friday

SCHOOLS these days provide several activities also called services like transportation, computer classes, karate, dance, music, library, canteen, excursions and so on and they charge for each of these items. School education is under the negative list and so is not liable to Service Tax. But what about all these other services ? Recently Schools organisations in many States have organised protest marches against imposition of Service Tax on these activities and some of them have sent representations to the Board.

Yesterday, the CBEC has come out with a clear clarification. Board at the outset refers to statutory provisions:

Section 66D(l) of the Finance Act,1994 (Negative List)

"services by way of -

(i) pre-school education and education upto higher secondary school or equivalent;

(ii) education as a part of a curriculum for obtaining a qualification recognized by any law for the time being in force;

(iii) education as a part of an approved vocational education course;".

Notification No. 25/2012-S.T dated 20.6.2012 (Sl. No.9) exempts;

"Services provided to an educational institution in respect of education exempted from service tax,by way of,- (This was Services provided to or by prior to 1.3.2013 - DDT)

(a) auxiliary educational services; or

(b) renting of immovable property;".

Definition (f) in the Notification:

"auxiliary educational services"  means any services relating to imparting any skill, knowledge, education or development of course content or any other knowledge-enhancement activity,whether for the students or the faculty, or any other services which educational institutions ordinarily carry out themselves but may obtain as outsourced services from any other person, including services relating to admission to such institution,conduct of examination,catering for the students under any mid-day meals scheme sponsored by Government,or transportation of students,faculty or staff of such institution.

(DDT Comments: Even this sentence appears to be faulty; it should perhapsbe, or any other services which educational institutions not only ordinarily carry out themselves but also may obtain as outsourced services from any other person

or

or any other services which educational institutions do not ordinarily carry out themselves but may obtain as outsourced services from any other person.)

Now Board clarifies:

Services relating to education are exempt from service tax. There are many services provided to an educational institution. These have been described as "auxiliary educational services" and they have been defined in the exemption notification. Such services provided to an educational institution are exempt from service tax. For example, if a school hires a bus from a transport operator in order to ferry students to and from school,the transport services provided by the transport operator to the school are exempt by virtue of the exemption notification.

In addition to the services mentioned in the definition of "auxiliary educational services",other examples would be hostels,housekeeping,security services,canteen,etc.

Thus the apprehensions conveyed in the representations submitted by certain educational institutions and organizations have no basis whatsoever. These institutions and organizations are requested not to give credence to rumours or mischievous suggestions. If there is any doubt they are requested to approach the Chief Commissioner concerned.

Services provided to the schools are exempted, but the moot question is are the services provided by the schools exempted? If the school provides bus transport or canteen or hostel, are they liable to pay? Does this mean that if a school hires a bus, there is no tax, but if the school owns the bus, there is tax liability?

This is exactly the point on which the Schools wanted clarification from the Board and the Board has conveniently ignored that question.

Please also see Auxiliary Education Services - Exemption Restricted

CBEC Circular No.172/7/2013-ST, Dated: September 19, 2013

Services to Schools exempted - What about services BY schools?

THE fact is in most cases these services are provided by the schools' often charging a separate fee for them. Board has clarified a doubt which did not exist and conveniently ignored the persistent doubt.

By the way, the Board should understand that these “rumours” and “mischievous suggestions” may have also been floated by the field formations and the apparition of a notice in some nook or corner is what causes these educational institutions and organizations to become apprehensive. So, not giving any credence to these “rumours and mischievous suggestions” does not always work - it's merely wishful thinking!

Further the definition of "auxiliary educational services" has specifically mentioned catering for the students under any mid-day meals scheme sponsored by Government - Now the Board clarification includes canteen. Does it mean the Board clarification expands the definition?

It is the mischievous amendment made in 2013, which has created an anomaly whereby auxiliary services provided BY the educational institutions became taxable when the same services if outsourced continue to be exempted. In their eagerness to capture revenue from renting of immovable property BY the educational institutions, they also removed exemption for auxiliary services BY these institutions. Board should read their own law and the effects of amendments and their own clarification (Para B(4)(i) of JSTRU letter dated 28.02.2013) before blaming others.

In many States, there is an upper limit on fees as prescribed by the State Governments, but the fact is the schools collect fees far more than the prescribed limits and often show the excess amounts as some additional fee. Now is this additional fee taxable?

Even the Central Government's own ‘Kendriya Vidyalayas' collect a computer fee of Rs. 100 and a Vidyalaya Vikas Nidhi of Rs. 500/-. Are these amounts taxable?

Education is a National Priority - should we tinker it with confusing taxes; If the managements are making huge profits, you can always levy Income Tax on them. Can't they and more importantly the helpless parents be spared the service of Service Tax?

Exchange Rates Notified

GOVERNMENT has notified new exchange rates for conversion of foreign currency for imported and export goods, effective from today.

It was only on 16th September that some of the exchange rates were changed. With daily fluctuation of exchange rates, Government is perhaps forced to notify exchange rates frequently.

Notification No.100/2013-Customs (NT), Dated: September 19, 2013

Don't Move Your Onion - Minimum Export Price Hiked Steeply

GOVERNMENT has hiked the Minimum Export Price (MEP) of onions to USD 900 per MT. Just a month ago, it was USD 650.

But why should anyone export onions when they command a price of Rs. 80 per kg in India?

DGFT Notification No. 41/(RE-2013)/2009-2014, Dated: September 19, 2013

Allocation of Rough Marble and Travertine Blocks for import for FY 2013-14.

DGFT has allotted 6 lakh MTs of Rough Marble and Travertine Blocks for import. Issue of import authorisation by RAs of DGFT would commence from 20th September 2013 and end on 25th September 2013.

License holders shall file monthly returns regarding imports made by them, to the concerned Regional Authority of DGFT by the 15th of each succeeding month in which license is obtained (for example, if a license is obtained on 23rd September, the authorisation holder will file monthly return for imports made in September by 15th of October) and for each month thereafter by the 15th day. This is a mandatory requirement as per para 3(C)(V) of the notification No.37 dated 26.8.2013.

DGFT Trade Notice No. 07/2013, Dated: September 19, 2013

Exports to Nepal - Notification No. 46/2001-C.E. (N.T) needs amendment.

PURSUANT to Revised Treaty of Trade between Government of India and Government of Nepal, exports to Nepal have been put at par with exports to other countries (except Bhutan). In this regard, six Notification Nos. 24/2011-Central Excise(N.T), 26/2011-Central Excise(N.T), 27/2011-Central Excise(N.T), 28/2011-Central Excise(N.T), and 29/2011-Central Excise(N.T), all dated 5.12.2011 have been issued to amend earlier Notification Nos 19/2004-Central Excise(N.T) dated 6.09.2004, 42/2001-Central Excise(N.T) dated 26.06.2001, 43/2001CE(N.T) dated 26.06.2001, 44/2001-Central Excise(N.T) dated 26.06.2001 and 45/2001-Central Excise(N.T) dated 26.06.2001, respectively.

But, there is one more Notification which perhaps the Board was not aware of at the time of issuing the above Notifications. It is Notification No 46/2001 CE(NT) dated 26.06.2001. This Notification still reads:

In pursuance of sub-rule (1) of rule 20 of the Central Excise (No.2) Rules, 2001 (hereinafter referred to as the said rules), the Central Government hereby extends the facility of removal of any excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) from the factory of production or such other premises as may be approved by the Commissioner intended for storage in a warehouse registered at such place as may be specified by the Board and for export therefrom under the provisions of rule 18 of the said rules to Nepal and rule 19 of the said rules to all countries, by such exporter or class of exporters as may be specified by the said Board.

With effect from 01.03.2012, exports to Nepal were brought on par with export to other countries and export is permissible under Rule 19 to Nepal also. But still, the above Notification allows setting up of export warehouses for exports only under Rule 18 for exports to Nepal. This needs to be corrected immediately to avoid possible disputes.

Further, Notification No 45/2001 CE(NT) still carries the following para which has become redundant after bringing the exports to Nepal on par with other countries. This special provision was required earlier as exports to Nepal was not allowed under Bond.

(3) Export in bond of petroleum oil and lubricant products to Nepal. - Notwithstanding anything contained in condition (1) above, the export in bond without payment of duty of excise of petroleum oil, liquified petroleum gas and lubricant products to Nepal, through the agency of Nepal Oil Corporation from calibrated stocks of M/s Indian Oil Corporation registered as a warehouse in accordance with the provisions rule 20 the Central Excise (No.2) Rules, 2001, and situated at places notified for the purpose, from time to time, or purchased without payment of duty from tanks of other Oil Companies or Undertakings is permitted provided that the Indian Oil Corporation shall execute a bond in the form specified in Annexure-I, to cover removals of petroleum oil, liquified petroleum gas and lubricant products to be exported for such amount and in such manner as may be determined by the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the installation from which the petroleum oil, liquified petroleum gas and lubricant products are to be exported.

Draft your Show Cause Notices properly, otherwise they will be quashed

THE great litigation industry in the Revenue Department starts with the Show Cause Notice and somehow this is given the least importance. Often the euphoria at the time of detection of the case does not remain till the issue of Show Cause Notice. Show Cause Notices are drafted callously and carelessly without clearly explaining the charges levelled and often ignoring statutory provisions.

Recently the CESTAT quashed a Show Cause Notice and the consequent adjudication order. The CESTAT observed,

The show cause notices in the present case before us, were issued on the basis of a prima facie assumption by Revenue that the assessee was assessable to levy of service tax for providing BAS. The reasons for such prima facie assumption of Revenue were however not specified in the show cause notices. Mere extraction of the entire provisions of Section 65(19) of the Act does not fulfill the requirement.

On the aforesaid analysis, the show cause notices dated 21.4.2010 and 20.4.2011 are invalid. This infirmity is incurable; these show cause notices are therefore quashed. Since the adjudication order is the consequence of the invalid show cause notices, it is also quashed.

However the Tribunal granted the Revenue another opportunity toinitiate proceedings afresh, by issuance a fresh show cause notice, clearly setting out the reasons, but in accordance with law.

Please see Breaking News for more details.

Condonation of delay application does not merit consideration but in view of the offer made to allow condonation with cost, cost imposed of Rupees Ten thousand

IN the matter of the COD application, the applicant submitted that one of the partners dealing with tax related matter was suffering from Infective Hepatitis and was advised rest for a month from November 15 to December 15; thereafter he was afflicted with low back pain and hypertension and was again advised one month bed rest. Xerox copies of Medical certificates were produced and the decision of the Supreme Court in Collector, Land Acquisition Anantnag and Another vs. MST, Katiji and Others - (2002-TIOL-444-SC-LMT) is cited with a request to take a liberal approach. It is also submitted that the Bench may condone the delay with imposition of costs.

The Revenue representative submitted that as the O-in-A was received by the applicant in September, there is no reason given for not filing the appeal in time by early November; that in any case the appeal papers are required to be prepared by the Advocate; that the apex Court in later judgments has held that every day's delay beyond the prescribed period needs to be explained; that the explanation is not satisfactory and the application needs to be rejected.

The Bench observed -

"5. I have gone through the papers. I find that before the Commissioner (Appeals) three opportunities were given to the appellant and they did not turn up. Even after receiving the Order-in-Appeal, no steps were taken to file the appeal in time. I also note that the preamble of the impugned order itself specifies the time limit and the authority to whom the appeal is to be filed. I also note that copies of the medical certificates produced are one from a surgeon and is not clear from the certificate that he is a specialist on the subject. The second certificate is from a doctor from different place. Under the circumstances, the condonation of delay application does not merit consideration. However, I accept the offer made by the learned Consultant to allow condonation with cost. Accordingly, the applicant is directed to deposit Rs. Ten thousand only with the Commissioner within a period of four weeks from today…."

The cost effective way!

Please See 2013-TIOL-1396-CESTAT-MUM

DDT Cartoon

 Jurisprudentiol – Monday's cases

Customs

No investigation whatsoever has been carried beyond point that Director of appellant is NRI and residing in Taiwan for past 25 years - Order set aside and appeal allowed: CESTAT

THE department could not show any evidence that the transaction value declared by the appellant was not price actually paid and that buyer and seller of the goods are related persons and the price was not a sole consideration. No investigation whatsoever has been carried out beyond the point that director of the appellant a NRI was residing at Taiwan for 25 years. Further the rejection of transaction value is not supported by evidence of contemporaneous import. However the department took recourse to the theory of preponderance of probability to prove the case. The said theory cannot be a substitute for lack of investigation and absence of evidences.

Income Tax

Whether ancillary profit like DEPB receipts can be said to be derived from industrial undertaking for purpose of claiming deduction u/s 80IC - NO: ITAT

THE issues before the Bench are - Whether ancillary profit like DEPB receipts can be said to be derived from an industrial undertaking for the purpose of claiming deduction u/s 80IC of the Act and Whether the Revenue can deny deduction u/s 80IC claimed by the assessee on the ground that the assessee has not carried out any manufacturing activity on the basis of assumption and suspicion and without laying its hands on any concrete material to prove the same. And verdict partly goes in favour of the assessee.

Service Tax

Whether ‘Vidarbha Cricket Association' is to be considered as ‘Charitable Organization' & is to be held not liable to ST under ‘Club or Association Service' - Difference of opinion between M(J) and M(T) - Matter placed before President for reference to Third Member: CESTAT

THE appellant is a member of the Board of Control for Cricket in India (BCCI). From the income proceeds of BCCI, the members were given reimbursement under various categories such as, TV Rights subsidy, Tournament receipts, IPL subsidy players' expenses reimbursements and subsidy for international matches. These amounts are given to promote the game of cricket and also to undertake construction of infrastructure for playing cricket within the jurisdiction of the members.

The CCE& ST, Nagpur was of the view that the amounts received from BCCI by the appellant is for providing infrastructure support to BCCI for conducting tournaments and, therefore, the same is classifiable under the category of 'Business Support Services'.

See our Columns Monday for the judgements

Until Monday with more DDT

Have a nice weekend.

Mail your comments to vijaywrite@taxindiaonline.com