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Export, Import, SEZ and service tax

December 9th, 2016

Concept of import and export of service is different from Place of Provision of Service Rules (POP Rules), though base is same. POP Rules only determine whether service tax is payable (It is payable if service is provided in taxable territory). If service tax is payable, then whether it is import of service will be determined on basis of further criteria as discussed here. If service tax is not payable, then whether it is export of service will be determined on basis of further criteria as discussed here.

1 Export of Service

¨     No service tax if place of provision of service outside taxable territory

¨     However, benefit of rebate or exemption available only if it is export of service as per Rule 6A of Service Tax Rules.

¨     If not, export benefits not available, rule 6 of Cenvat Credit Rule (6% amount or proportional reversal) apply but service tax is not payable

2 Requirements of rule 6A for export of service

¨     Place of Provision of service outside India (this would include J&K also but still not export since payment not received in foreign currency)

¨     Provider of service located in taxable territory and recipient located outside taxable territory

¨     Service should not be in Negative List

¨     Payment should be in free foreign exchange

¨     If branch in India of a company provides some service to another branch outside India, it will not be export service.

3 Rebate of Service Tax paid on Input Services used for export of services

¨     Rebate as per Notification No. 39/2012-ST dated 20-6-2012.

¨     Procedure as prescribed in Notification should be followed.

¨     If you are manufacturer or service provider and are in position to utilise Cenvat Credit, that is much better option instead of trying for refund.

4 Refund of input service under Rule 5 of Cenvat Credit Rules

¨     Procedure as prescribed in Notification No. 27/2012-ST dated 18-6-2012

¨     Procedure slightly less complicated compared to rebate procedure.

¨     If you are manufacturer or service provider and are in position to utilise Cenvat Credit, that is much better option. [However, some harassment from department possible in view of faulty drafting of rule 5 of Cenvat Credit Rules

¨     Rule 5 not mandatory though harassment and litigation possible.

5 Rebate of input services used for export of goods

¨     Procedure as prescribed in Notification No. 41/2012-ST dated 29-6-2012 should be followed

¨     Procedure easy – useful to merchant exporters

¨     If you are manufacturer or service provider and are in position to utilise Cenvat Credit, that is much better option

6 Exemption to service tax on commission to foreign agent and GTA services

¨     Service tax required to be paid on reverse charge basis in following cases – (a) Commission paid to foreign agent (b) Goods Transport Agency (GTA) service used for export of goods.

¨     In such cases, instead of paying service tax and then claiming refund, outright exemption is available in following cases – (a) If commission upto 10% – follow procedure prescribed in Notification No. 42/2012-ST dated 29-6-2012 (b) GTA services used for export of goods – follow procedure prescribed in Notification No. 31/2012-ST dated 20-6-2012

¨     If you are in position to avail Cenvat, better pay service tax and avail Credit

7 Import of Service

¨     Actually this term has not been used in law but used frequently in discussions. The service is ‘import’ if following are satisfied.

¨     If place of provision of service is taxable territory [If place of provision of service is outside India, then there is no service tax liability. Hence, no question of service tax].

¨     If service provider located outside taxable territory and service receiver located in taxable territory [If both are in taxable territory, the service provider liable. If both are outside taxable territory, no question of service tax at all].

¨     Service receiver liable to pay service tax under reverse charge if aforesaid conditions are satisfied.

¨     Cenvat credit can be taken after payment of service tax by GAR-7 challan, if the service is eligible as Input Service under Cenvat Credit Rules.

8 Some important services under Import of Service

¨     Foreign Commission Agent.

¨     Banking and Financial Services (e.g. for ECB, Issue of GDR or ADR)

¨     Management and technical consultancy.

¨     Advertisements issued by Indian Business Entity and published outside India on TV or radio (If it is in print media, no service tax as it is in negative list).

9 Exemptions from service tax on Import of Service

¨     Import of service by Government, local authority or Governmental authority for non-commercial purposes

¨     Import of service by individual for purpose other than commerce, industry, business or profession

¨     Imports for charitable purposes by Charitable Organisations registered under section 12AA of Income Tax Act.

10 Services provided to SEZ

¨     Exempt if wholly consumed in SEZ for authorised operations as defined in Notification 40/2012-ST dated 20-6-2012.

¨     If SEZ unit or developer has business outside SEZ, then in case of services not relating to goods or immovable property, service tax has to be charged and refund has to be applied by SEZ  unit or developer on proportionate basis

11 Overriding Provision in Cenvat Credit Rules

¨     No reversal or payment of amount if services provided to SEZ unit or developer [Rule 6(6A)]

 

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