review of literature -...

130
80 CHAPTER 3 Review of Literature 3.1 Introduction After conducting a study of various provisions in tax laws and decisions of Courts and Tribunals , the researcher conducted exhaustive review of literature available in the area of indirect taxes and in particular tax planning . The researcher reviewed following. Constitution of India with an objective to study the powers to levy and collect taxes and other measures. Basic provisions of Central Excise, Customs and Service Tax, including Acts, Rules and Regulations and notifications issued thereunder, especially to understand various benefits and exemptions available to manufacturer and service providers, which contribute to cost reduction. Cenvat Credit Rules play an important role in the case of exemptions under Central Excise and Service Tax. Any exemption under Central Excise and Service Tax has to be read alongwith Cenvat credit provisions as it will have direct effect on Cenvat credit.

Upload: others

Post on 20-Mar-2020

10 views

Category:

Documents


0 download

TRANSCRIPT

80

CHAPTER 3

Review of Literature

3.1 Introduction

After conducting a study of various provisions in tax laws and decisions of

Courts and Tribunals , the researcher conducted exhaustive review of

literature available in the area of indirect taxes and in particular tax planning .

The researcher reviewed following.

Constitution of India with an objective to study the powers to levy and

collect taxes and other measures.

Basic provisions of Central Excise, Customs and Service Tax,

including Acts, Rules and Regulations and notifications issued

thereunder, especially to understand various benefits and exemptions

available to manufacturer and service providers, which contribute to

cost reduction.

Cenvat Credit Rules play an important role in the case of exemptions

under Central Excise and Service Tax. Any exemption under Central

Excise and Service Tax has to be read alongwith Cenvat credit

provisions as it will have direct effect on Cenvat credit.

81

Foreign Trade Policy, which provides various measures for export

promotions and facilities to exporters. Availing benefit of the same is

an important measure for cost reduction.

Legal Metrology Act, as it applies to packaged commodities. For

Valuation of goods under MRP provisions , review of Legal

Metrology Act was essential

Special Economic Zone (SEZ) is treated as island within India and

SEZ developers and Units get many tax concessions in Direct as well

as Indirect Taxes and therefore it helps the unit in reduction in cost by

way of tax concessions and also administratively.

Various decisions of Court and Tribunals in the area of indirect taxes

deciding many aspects of tax planning, valuation, manufacture,

classification etc.

Generally Accepted Cost Accounting Principles and Cost Accounting

Standards provide guidelines regarding accounting and determination

of cost and cost elements.

Cost Accounting Records Rules and Cost Audit Rules have direct

linkage with central excise and service tax. Usefulness of cost audit

mechanism in the area of indirect taxes is well recognized. The cost

audit mechanism provides great support in the area of tax

management.

Review of Committee and Task Force reports on Tax Reforms gives

an idea on the developments in the taxation provision and tax reforms.

82

Research articles.

Report of the Comptroller and Auditor General of India for the year

ended March 2012, on Indirect Taxes contains useful information as to

how tax planning and tax management has failed and resulted in heavy

penalties.

PhD Thesis.

Website of Central Board of Excise &Customs (CBE&C), Ministry of

Commerce, SEZ gives broad idea about various provisions,

amendments etc.

Review of the above is presented in this chapter of Review of Literature.

3.2 CONSTITUTION OF INDIA.1

Constitution of India, which came into effect on 26th January, 1950, is the

supreme of all laws in India and Government actions are subordinate to the

constitution. Power to levy and collect tax is derived from constitution. Any

Act, Rule, Regulation, Notification, Circular cannot be issued overriding the

scope and powers granted in Constitution, otherwise it will be ultra virus the

constitution.

Powers to levy and collect tax is derived from constitution. Statutory

provisions cannot override constitutional provisions and therefore the

researcher felt it necessary to review Constitution with an objective to

understand the powers of Central Government, State Governments and Local

Bodies to make rules, functioning of three organs namely Legislative Organ,

83

Administrative Organ and Judicial Organ, the mode of passing Act,

Ordinance, Notification and its effective date.

The structure of Government is federal in nature. In the basic scheme of

taxation, Article 246 of Seventh Schedule to Constitution indicates bifurcation

of powers to make laws between Union of India and State Governments.

Parliament has exclusive powers to make laws in respect of matters given in

List No. I, called as Union List. State Government’s powers are given in List

II, called as State List and List III, which is called as Concurrent List contains

entries where both Union as well as State Government can exercise powers.

All the three taxes Central Excise, Customs duty and Service Tax are in the

list I and Central Government has exclusive powers to make rules and changes

in these three taxes.

3.3 CENTRAL EXCISE

3.3.1. Central Excise Act 1944.2

Central Excise Act, 1944 is the basic Act, containing basic provisions related

to charging of excise duty, valuation of excisable goods, powers of officers,

penalties, adjudication and appeals, settlement of cases, advanced ruling etc.

The Central Excise Act, 1944, in the present form contains 40 sections. The

Act was known as Central Excises and Salt 1944. The word ‘salt’ was

dropped in 1996.

84

3.3.2. Central Excise Rules, 20022.

Sec 37 of the Central Excise Act, 1944, grants power to Government to frame

rules to carry into effect the purposes of Central Excise Act. Sec.38 of the Act

provides that rules should be made by issue of notification and should be

placed before Parliament for 30 days when Parliament is in session. The

Central Excise Rules do prescribe certain procedures and Returns. For

Contravention of any rules and procedures, stringent penalties have been

prescribed under Central Excise and therefore review of Rules was considered

important for the purpose of tax management.

3.3.3. Central Excise Valuation Rules, 20002

Sec. 4 of the Central Excise Act, 1944 contains the basic provisions related to

determination of value of the excisable goods for the purpose of charging

excise duty. However, in certain cases, value cannot be fixed under Sec 4 of

the Act. Where the value cannot be determined u/s 4 of the Central Excise

Act, Valuation Rules have been prescribed u/s 4(1) (b) of the Central Excise

Act 1944.

The Valuation Rules contain following areas where tax planning is possible

Claiming deduction of freight and insurance from the assessable value

and thereby reduce the excise duty liability as per Rule 5 of the

Valuation Rules.

Concept of additional consideration as envisaged in Rule 6 of the

Valuation Rules.

Determination of correct Cost of Production according to CAS4 as

prescribed in Rule 8 of the Valuation Rules.

Related party transactions in Rule 9 and 10 of the Valuation Rules.

Valuation of the goods in the case of Job Work, as per Rule 10A of the

Valuation Rules.

85

3.3.4. Cenvat Credit Rules, 20042.

Cenvat Credit Rules, 2004 are common for Central Excise and Service Tax.

These rules are framed with the basic objective of minimizing the cascading

effect of duties and service tax. These rules make provision for availing VAT

credit of excise duty paid on inputs and capital goods and service tax on input

services. The credit is interchangeable and can be utilized for making payment

of excise duty on manufactured goods and service tax on taxable output

services.

While reviewing various Exemption Notifications under Central Excise and

Service Tax and Cenvat provisions that every exemption under central excise

and service tax has to be studied alongwith its impact on Cenvat credit.

Cenvat Credit on inputs and input services is not available if final product or

output service is exempt from excise duty or service tax. Where the

manufacturer is manufacturing both dutiable goods and exempted goods or

service provider is providing taxable services and exempted services, there

may be common inputs and input services used for manufacturing dutiable

goods and exempted goods or taxable and exempted services. In such cases,

following four options have been provided under Rule 6 of the Cenvat Credit

Rules.

i) Rule 6(2) of CCR: - Maintain separate inventory and accounts of

receipt and use of inputs and input services used for exempted goods,

exempted services.

ii) Rule 6(3) (i) of CCR: - Pay amount equal to 6% of exempted goods /

exempted services.

86

iii) Rule 6(3)(ii) of CCR :- Pay an amount equal to proportionate Cenvat

credit attributable to exempted final product / exempted output service

as provided in Rule 6(3A).

iv) Rule 6(3) (iii) of CCR: - Maintain separate accounts for inputs and

pay amount as determined under rule 6(3A) in respect of input

services.

The option has to be exercised in respect of all exempted goods manufactured

and all exempted output services provided. As per explanation I to Rule 6(3)

of the Cenvat Credit Rules, the option once exercised shall not be changed in

remaining part of financial year. Therefore exercising correct option is an

important measure of tax planning.

The another important area for tax planning is removal of inputs and capital

goods as such. In case of removal of capital goods after use, paying correct

amount is also an important area for tax management.

Highlights of Cenvat Credit Scheme

Intents to avoid cascading effect of Excise Duty and Service Tax.

Credit of duty paid on inputs, input services and capital goods

available to manufacturer of excisable goods and provider of taxable

output services.

No credit of service in Jammu and Kashmir.

Inputs, moulds, dies, jigs and fixtures can be sent to Job Worker.

Removal of used capital goods as scrap or second hand capital goods

on payment of appropriate amount.

Credit on motor vehicles available to specified output service

Credit on basis of specified documents.

87

Credit available instantly in case of input goods and input services.

Cenvat credit of capital goods in two stages, upto 50% in the year of

receipt and balance in any subsequent financial year.

Cenvat to manufacturer available only if there is a ‘manufacture’.

Cenvat Credit is available in respect of specified duties only such as

basic excise duty, service tax, education cess and higher education

cess, countervailing duty, special additional duty.

Cenvat Credit of special additional duty is not available to service

provider.

Utilization of Cenvat credit for payment of duty on final product as

well as service tax on output services. Cenvat Credit interchangeable.

Cenvat Credit is indefeasible.

One-to-one correlation between inputs and final product is not

required.

No input credit if final product / output service exempt from excise

duty/ service tax.

No cash refund, except in case of export or supply to SEZ.

Unutilized Cenvat Credit is transferable in case of transfer of location,

sale, and merger of the manufacturing unit.

Accounting entries not relevant for eligibility of Cenvat Credit.

88

3.3.5. Central Excise Tariff Act 1985.3

Excise duty is on excisable goods manufactured or produced in India. The

liability of payment of duty is on manufacturer of the goods. To determine

correct duty payable following two steps need to be followed.

1. Classify the goods correctly to find out rate of excise duty.

2. To determine assessable value of the goods, to which rate of duty is to

be applied for calculating amount of duty payable.

The Classification of goods, rate of duty and principles of classification are

given in the Central Excise Tariff, Schedules thereof. The Central Excise

Tariff Act, 1985 (CETA) classifies goods under 96 Chapters. A specific code

is assigned to each item. The classification forms basis for classifying the

goods under a particular chapter head / sub head to prescribe duty to be

charged on that particular product.

Central Excise Tariff Act, 1985 deals with the classification of goods and rate

of excise duty payable on it. Predominantly the classification of goods is

based on Harmonious System of Nomenclature and trade parlance i.e. a word

in statute should be construed in its popular sense and not in strict or technical

sense. Popular sense means that which people conversant with the subject

matter with which statute is dealing, would attribute to it. In CCE Vs Vicco

Laboratories-2005(179)ELT17(SC 3 member bench), Hon. Supreme Court

held that the burden of proof that a product is classifiable under a particular

tariff head is on the revenue and must be discharged by proving that it is so

understood by the consumers of product in common parlance.

89

Exemption Notifications are issued by the Central Government providing

concessions and exemptions from duty. The effective rate of duty is to be

found from the relevant notification issued under Central Excise Tariff.

3.3.6. Notifications3.

Under Sec.5A and 11C of the Central Excise Act, 1944 powers have been

granted to Government for granting partial or full exemptions from excise

duty. Central Excise Rules also provide for issue of notifications in respect of

various matters. The Rules and Notifications have full legislative backing and

are treated as part of the Act.

3.3.7. CBEC’s Excise Manual of Supplementary Instructions2.

The manual of supplementary instructions was issued by the Central Board of

Excise and Customs in 2005. Only general provisions and procedures

applicable to manufactured goods have been incorporated in this manual. The

manual is divided into 19 chapters and contain instruction related to following

Registration under Central Excise,(Chapter 2).

Assessments, Classification, valuation, provisional assessment,

manner of duty payment, account current, scrutiny (Chapter 3).

Invoice System (Chapter 4).

Cenvat Credit (Chapter 5).

Records and Returns under Central Excise (Chapter 6).

Export without payment of duty (Chapter 7)

Export under claim of rebate (Chapter 8)

Refund(Chapter 9)

Warehousing (Chapter 10).

Samples (Chapter 11).

90

Special Procedure for specified goods (Chapter 12).

Demand / Show Cause Notice, Adjudication, Interest, Penalty,

Confiscation, Seizure, Duty payment under protest. (Chapter 13).

Bonds and Letter of Undertaking (Chapter 14).

Excise Audit (Chapter 15).

Appeals (Chapter 16).

Search, Seizure, Arrest and Prosecution (Chapter 17).

Remission of duty, Return of duty paid goods to factory, Job Work

(Chapter 18).

Advance Ruling (Chapter 19).

3.3.8 Circulars issued by CBE & C4.

Central Board of Excise and Customs issues circulars and clarifications from

time to time. Trade Notices are issued by the Commissioners. Generally

circulars are issued to clarify the views of the Government in respect of

specific points under Act, Rules or Notifications or to give some information.

The circulars do not have any legal force and are not binding on assessee,

quasi judicial authorities and courts. If any circular or trade notice is beyond

the provisions of Act or Rules, they cannot be binding on Government also.

91

3.4 CUSTOMS.

3.4.1 Customs Act 1962, Rules and Regulations made thereunder5.

Customs Act 1962, contains basic provisions related to imports and exports

and customs duty. The Rules and Regulations framed thereunder contain

procedural aspects, valuation for the purpose of determination of customs

duty, person responsible for payment of duty, penalties, appeals etc. Like

Central Excise, Rules and Regulations are issued under Customs Act to carry

into effect the purposes of Customs Act, 1962. Notifications are issued

granting partial or full exemptions from Customs Duty.

3.4.2 Customs Tariff Act 19756.

Customs Tariff Act, 1975 deals with the classification of goods and rate of

customs duty payable on it. Predominantly the classification is based on

Harmonious System of Nomenclature and trade parlance. Exemption

Notifications are issued by the Central Government providing concessions and

exemptions from duty. The principles of classification of goods under Central

Excise and Customs are same.

3.4.3. Customs Manual-20115.

Customs Manual was released by Central Board of Excise and Customs on

27.01.2011. The manual gives an overview of Customs Law and Procedures.

Though it is useful guide to taxpayers and it does not substitute for the rules,

regulations, notifications, circulars and instructions.

92

3.5. SERVICE TAX7.

3.5.1. Finance Act, 1994

Sec 64 to Sec 99 of Finance Act 1994 , contain provisions related to Service

Tax. There is no separate Act for service Tax. Service Tax Rules and other

Rules are also issued under the powers granted under Finance Act 1994.

3.5.2 Rules relating to service tax.

Following are the important rules related to service tax.

Service Tax Rules,1994

Cenvat Credit Rules,2004

Point of Taxation Rules, 2011.

Service Tax (Determination of Value) Rules, 2006.

Service Tax (Advance Ruling) Rules, 2003.

Service Tax (Settlement of cases) Rules, 2012.

Place of provision of Service rules, 2012.

Service Tax (Registration of Special Category of Persons) Rules,

2005.

Service Tax (Publication of Names) Rules, 2008.

Service Tax (Provisional Attachment of Property) Rules, 2008.

Service Tax (Compounding of Offences) Rules, 2012.

Service Tax (Removal of Difficulty) Order, 2012.

93

3.5.3 Education Guide issued by Central Board of Excise and Customs.

This contains clarifications and explanations on various issues related to

service tax and provide useful information to tax payers.

3.6 Foreign Trade Policy8

Under powers of Sec 3 and Sec 5 of Foreign Trade (Development and

Regulation) Act, 1992, Ministry of Commerce issues policy for import and

export. Usually it is issued for five years but is amended from time to time.

The policy was earlier termed as EXIM policy. It was renamed as “Foreign

Trade Policy” for 2004 onwards.

Generally, policy announced by Ministry of Commerce is not followed by

customs and excise department unless there is corresponding excise or

customs notification.

The Foreign Trade Policy provides the overarching framework for catalyzing

India’s Exports. The Foreign Trade Policy for the year 2009-2014 was

announced on 27th August 2009.

The Foreign Trade Policy contains policy and procedures related to Special

Focus Incentives, Board of Trade- its composition and Terms of Reference,

General Provisions regarding imports and exports, Export Promotional

Measures, Deemed Exports, etc.

The Duty Exemption and Remission Schemes under Foreign Trade Policy

include following

94

Advance Authorization Scheme,

Duty Free Import Authorization (DFIA) Scheme,

Duty Entitlement Passbook (DEPB) Scheme,

Export Promotion Capital Goods (EPCG) Scheme,

Export Oriented Units (EOU), Electronics Hardware Technology Parks

(EHTPs), Software Technology Parks (STPs) and Bi-Technology Parks

(BTPs).

Special Economic Zones.

Free Trade and Warehousing Zones.

Availing benefits of the various schemes under Foreign Trade Policy is an

important measure of tax planning and contributes to cost reduction activities

substantially.

95

3.7 Special Economic Zone Act

Special Economic Zone (SEZ), Act 2005 is an Act to provide for

establishment, development and management of the Special Economic Zones

for the promotion of Exports and for matters connected therewith or incidental

thereto. As spelt out is Sec 5 of the Special Economic Zone Act ,2005

following are the guiding factors in approving proposals to establish SEZ.

a) Generation of additional economic activity;

b) Promotion of exports of goods and services;

c) Promotion of investment from domestic and foreign sources;

d) Creation of employment opportunities;

e) Development of infrastructure facilities; and

f) Maintenance of sovereignty and integrity of India, the security of the

State and Friendly relations with foreign states.

Special Economic Zones offer well developed enclaves of industrial

infrastructure with plots, built up space, power, water supply, transport,

housing , social infrastructure etc. The Special Economic Zones are

specifically delineated areas wherein units may be set up for specified

purposes of manufacturing or trading or rendering services or for providing

warehousing facilities for export.

As per Sec 2(i) of the SEZ Act, the domestic tariff area (DTA) means the

whole of India including its territorial waters and continental shelf but not

including areas of the SEZ.

Sec 53 of the SEZ Act provides that SEZ shall be deemed to be a territory

outside the Customs territory of India. The legal implication is that the SEZs

are treated as foreign territory for the purposes of trade operations, duties and

96

tariffs . In other words goods and services going into the SEZ from DTA are

treated as exports and goods and services coming from SEZ are treated as

Imports. Therefore, domestic laws do not generally apply to the SEZs and the

units therein. Sec 51 of the SEZ Act provides that SEZ Act will have

overriding effect over other laws.

Vide Finance Act, 2002, changes were brought in the Customs Act, 1962 and

Central Excise Act,1944 in the context of the SEZs.

3.8 Review of Committee Reports.

3.8.1 A Task Force on Direct Taxes Reforms10.

Ministry of Finance and Company Affairs, with an objective to rationalize and

simplify Direct Taxes Laws and re-design procedures to bring them at par

with best international practices, so as to encourage voluntary compliance and

reduce compliance cost, vide Notification No. 153/191/2002-TPL dt.6th

November 2002, constituted a Task Force on Direct Taxes, under the

chairmanship of Dr. Vijay Kelkar.

The consultation paper of the Task Force on Direct Taxes was made available

on the website of the ministry of Finance & Company Affairs on 2nd

November 2002 inviting comments and suggestions of all concerned.

The Task Force submitted its final report to the ministry, recommending

various measures of simplification in tax provisions with respect to annual

information return, search and seizure, assessments, dispute resolutions, tax

administration, personal tax reforms, corporate tax reforms, taxation of capital

gains etc. The task force recommended more autonomy to CBDT.

97

It was expected that the recommendations of the task force will have

following impact.

1. Individual taxpayers of all categories and in every income group benefit

substantially from the package of recommendations. (Para 9.8)

2. Overall, the recommendations are revenue neutral at the existing level of

compliance. To the extent the new simplified and liberalized tax regime

will introduce compliance, the revenue gains are likely to be substantially

higher and it will enhance buoyancy by widening the personal and

corporate income tax bases.(Para 9.14)

3. The recommendations for eliminating the exemptions, the extensive use of

technology and privatization of non core activities of the tax

administration will result in sharp reduction in transaction cost. A 10 %

reduction in transaction cost for personal income tax would help taxpayers

to save an estimated Rs.4000/- Crores. Such reduction in transaction cost

is progressive.

The Task Force Recommendations were mainly on simplifications in tax

provisions and reducing the complications, resulted in helping taxpayers in

tax planning.

3.8.2 A Task Force on Indirect Taxes10.

Ministry of Finance and Company Affairs, with an objective to take advantage

of information technology and bring the indirect tax systems and procedures

at par with the best international practices , and thus , encourage compliance

and reduce compliance cost, vide Notification No. 201/65/2002-CX6 dt. 3rd

September 2002, constituted a Task Force on Indirect Taxes, under the

chairmanship of Dr. Vijay Kelkar.

98

On 25th October 2002, the Task Force presented the consultation paper to

the Government with a request that the same may be made available to the

public at large for discussion on the proposals contained therein.

The response was overwhelming; By and large the proposals contained in

the consultation paper were appreciated. However, there was also

constructive criticism to some proposals, particularly tax rates of some

items.

It was expected that with the proposed reforms, the reduction in the

transaction costs could be as much as 50%, the potential gains to the

economy would be Rs.4000-5000 Crores per annum.

The basic reforms recommended by the task force include following.

Customs Procedures and Trade Facilitation

1. Trust Based System (TBS); Universal Green Channel.

2. Liberal steps in Licensing of Customs House Agents. (CHA).

3. For improved Customs Administration, following measures were

recommended

Intelligence, investigations and audit sections of the customs house

may be strengthened.

Functioning of Special Valuation Branch should be reviewed to

provide time bound finalization of cases in practice. Further pre

deposit of duty should be dispensed with.

There should be sharing of merchant overtime fees for activities done

in customs area.

99

Export valuation rules should be framed for export promotion

schemes.

Customs should allow abandonment of warehoused goods.

Customs duty payment may be through cheques.

Expansion of scope of confiscation provisions to include non dutiable

goods as well as goods not covered under drawback scheme.

To accept Export Obligation Discharge Certificate issued by DGFT by

customs without delay.

Customs officers may be empowered to enforce IPR by a suitable

amendment to the Trade and Merchandise Marks Act and the

Copyright Act.

Central Excise

The recommendations aimed at comprehensively changing the essence of

central excise administration with the twin objective of tax payer facilitation

and encouraging compliance for increased revenue.

Following are the highlights of the recommendations made by the Task Force.

Manufacture

Levy of Central Excise should be progressively based upon value

addition to be applied only to the processing stage of manufactured

goods.

In order to prevent any misuse of the MRP provisions, it was

recommended that wherever MRP based levy is applied on an item,

the act of repacking, re-labelling and putting the item into unit

100

container for retail sale may be deemed to be amounting to

manufacture.

Valuation

Guidelines for determination of cost of production should be issued at

the earliest.

Value of the goods, when removed to sister units should be 105% of

cost of production.

The system of MRP based valuation may be expanded.

Cenvat

Abolish the distinction between capital goods and inputs and allow

credit on all inputs brought into factory except for those figuring in a

small negative list, such as office furniture, motor vehicles, MS, HSD

etc.

To allow full credit of the duty paid on capital goods immediately on

receipt, as in the case of inputs.

An explanation may be inserted in rule 16 of the Central Excise Rules,

to the effect that the amount paid on removal of returned goods can be

taken as Cenvat credit in the hands of the recipients.

A specific provision may be introduced to charge duty on the

dismantled capital goods when removed from the factory.

101

Cenvat Credit should not be allowed on deemed credit basis.

Rule 12 of the Cenvat Credit Rules, 2002 should be amended to

provide recovery of Cenvat credit erroneously refunded.

Cenvat inputs may be allowed to be stored outside the factory in an

identified place of storage subject to procedural safeguards for due

accountal of the inputs.

Export

Sealing of export consignments by Central Excise Officers should be

replaced by self sealing by the exporter, as a matter of right.

Improvement in the system of grant of rebate.

Manner of payment of duty

Fortnightly payment of duty may be replaced by monthly payment.

The date of payment of central excise duty may be prescribed as the

date of presentation of the cheque to the bank subject to its realization.

In the case of default in payment of duty, the provision of withdrawing

the facility of payment of duty in installments in case of defaults

should be revoked.

102

There should be automatic charge of interest and penalty in the event

duty is not paid on time.

In the event it is decided to retain the provision of withdrawing the

facility, the assessee should be allowed to pay duty during this period

through Cenvat credit.

Other important recommendations include the reforms in the Assessments,

Dispute Resolution, Filing of Returns, Voluntary filing of documents by tax

payers, Arrests, Tax clinics for small scale sector manufacturers.

Researchers Observations and Comments:-

The consultation paper was presented in October 2002. It has been observed

that during the last twelve years, the provisions under Central Excise Act,

Central Excise Rules and Cenvat Credit Rules have been amended to give

effect to almost all the recommendations made by the Task Force. Following

are the examples.

1. Section 2(f) of the Central Excise Act, 1944 has been amended to

include packing, repacking, labeling, relabeling, putting the item

into unit container for retail in the definition of “manufacture.”

2. Schedule III, to the Central Excise Act has been issued to provide

list of items where packing, repacking, labeling, relabeling, putting

the item into unit container for retail amounts to “manufacture.”

103

3. Notification No. 49 has been issued to provide for abatement in the

MRP to arrive at the assessable value of the items covered under

MRP Provisions.

4. Rule 16 of the Central Excise Rules, 2002 has been amended to

provide that the amount paid on removal of returned goods can be

taken as Cenvat credit in the hands of the recipients.

5. Cenvat Credit Rules have been amended to provide that Cenvat

Credit is not allowed on deemed credit basis.

6. Fortnightly payment of duty is replaced by monthly payment.

7. The date of payment of central excise duty is prescribed as the date

of presentation of the cheque to the bank subject to its realization.

In fact, e-payment is made mandatory where the duty liability is

more than Rs.10 Lacs annually.

8. Sec 11A of the Central Excise Act has been amended to provide

for automatic charge of interest and penalty in the event duty is not

paid on time.

The amendments made in the excise, in line with the recommendations of the

Task Force has removed many complications and made the compliance, tax

management and tax planning easier.

104

Service Tax

The task force recommended the following:

1. To the extent possible, Service Tax should be levied in a

comprehensive manner leaving out only few services by including

them in a negative list.

2. There should be complete integration of Cenvat credit and service tax

credit schemes.

3. Credit of central duties (on goods and services) should be utilized for

payment of service tax collected and appropriated by the Central

Government.

4. The rate of service tax should be suitable enhanced so as to achieve

parity with the Cenvat rate by 2006-07. However, there should be two

rates, one for service providers who avail credit and a lower rate for

those who do not.

5. Threshold limit of Rs.10 Lakhs for small service providers.

6. Separate enactment for service tax.

7. Service should be classified on the basis WTO classification, which

should be made a part of Service Tax legislation.

8. The task force also recommended measures of early settlement of

disputes.

105

9. It was also recommended that there should be a time bound review of

the automation needs of service tax administration and in like manner

as proposed for other indirect taxes steps should be taken to automate

the processes and allow online filing of returns and payment of service

tax.

Researchers Observations and Comments:-

The consultation paper was presented in October 2002. It has been observed

that during the last twelve years, the provisions related to Service Tax have

been amended to give effect to almost all the recommendations made by the

Task Force. Following are the examples.

1. Service Tax based on Negative List has been made effective from

01.07.2012.

2. “Service” has been defined in Sec 65(44) of the Finance Act, 1994.

3. Cenvat Credit Rules, 2004 made applicable to manufacturing and

service sector providing interchangeability of Cenvat Credit

Utilization.

4. Service Tax Rate and Cenvat Rate (Central Excise Duty rate) are at par

from 01.04.2011.

5. Threshold limit of Rs.10 Lakhs for small service providers.

The new law, (w.e.f. 01.07.2012) provides more area for tax planning.

106

Others

The Task Force also recommended various simplification measures in the area

of Export Promotion, SEZ and EOU schemes, Drawback Scheme, Automation

of indirect tax systems and procedures, improving indirect tax administration,

CBEC Administration, Revenue augmentation, Tax levies and rates, Central

Excise Duty Structure for Petroleum and Textile sector, Small Scale Sector

duty exemption, and VAT. As regards Central Excise Duty Exemptions, it

was recommended that the following factors must be taken into account while

considering the grant of a duty exemption.

Income elasticity of the product cost of compliance, international best

practices, and cannon of transparency.

Instead of duty exemption whether it is possible to extend the same

benefit through a budgetary mechanism.

If an exemption is issued, it should indicate the period of its validity

with a proviso that changed circumstances may warrant a mid-term

review.

On perusal of the recommendations made by the task force and the Central

Excise, Customs and Service Tax law in the present form, it can be seen that

most of the recommendations made by Task Force have been implemented

and the law has been amended suitably.

In the opinion of the researcher, the amended provisions do help in tax

management and tax planning in Indirect Tax areas. It has brought

simplification and clarity in the law and left very little scope for different

interpretation and confusion.

107

3.8.3 Advisory Group on Tax Policy and Tax Administration for Tenth

Plan10

The Planning Commission set up the Advisory Group in July 2000 under the

chairmanship of Shri Parthsarathi Shom to study tax policy and Tax

Administration issues and make appropriate recommendations at different

levels of government with the purpose of granting resources for the tenth Five

Year Plan.

Challenges before Advisory Group

The Advisory Group faced two challenges.

1. The parameters for the tenth plan were not finalized so far. The group

considered 15% growth target for its recommendations and suggestions.

2. While various aspects of tax structure have improved over time, many

deficiencies remained. Correction of such deficiencies would have

negative revenue impact in the short to medium term. The group took

option of analyzing such aspects and recommending corrective action

despite their potential negative impact. This implies that major

complimentary revenue yielding measures are needed to improve the

overall revenue productivity of the tax system, comprising both tax policy

and tax administration, and including all levels of government – Central,

State and Local.

108

Recommendations

Following major recommendations related to Indirect Taxes, were given by

the group.

Union Excise

1. It was recommended in the Interim Report that a two-rate structure of 16

percent together with a higher rate should be introduced. An increasing

number of items were to be converged to fall under the 16 percent rate to

minimize classification problems. This would be economically desirable

and administratively simple. The rates would have to be adjusted for

inclusion of services in the CENVAT. The 2001-02 Union Budget has

moved clearly towards a two-rate duty structure of 16 percent and 32

percent. However, the lingering lower rates of 4 percent and 8 percent

should now be merged with 16 percent in the next budget.

2. There is also a multiplicity of levies that include, apart from the excise

rate structure, additional excise duty (goods of special importance) in lieu

of sales tax on sugar, fabrics and tobacco; additional duty on motor

spirit (petrol and diesel); additional duty on textiles and textile articles

(fibers, yarn and fabric) under a subsidy scheme for "controlled cloth";

and cesses leviable under miscellaneous enactments. Separate accounts

are to be maintained for each of these levies, increasing administrative

and compliance costs. It is difficult to work out effective tax rates since

CENVAT credit is not given for all of them. It was recommended that

there should be a single levy under the Central Excise Act.

109

Base of Union Excises

The base of excise is manufacture. While many disputes have occurred over

the definition of manufacture, the effective twin test is: (a) a new article

should come into existence; and (b) it should be marketable. The current

definition—that does not include activities that may be deemed to be

manufacture such as labeling or printing a brand name—encourages

segregation of manufacturing activities to avoid tax. It was recommended in

the Interim Report that the definition of manufacture be widened to include

the chain of value addition by or on behalf of the manufacturer (undertaken

before marketing the product) to be charged to duty. The 2001-02 budget has

accepted this principle though only in the case of branded garments. This now

needs to be extended to other items like shoes, electrical gadgets etc.

Cenvat

It is recommended that both capital goods and other inputs "used in the

factory of the manufacturer" should be allowed CENVAT credit. Thus, capital

goods and other inputs should not be distinguished for purposes of input tax

credit.

Cenvat credit on capital goods should be immediately restored by giving the

credit in the year of purchase itself.

110

Exemptions

The Group observed that the excise base is eroded by exemptions, inter alia,

for: (a) small scale industry (SSI); (b) village industry marketed with KVIC

assistance; (c) specified goods supplied to various types of public institutions;

(d) goods produced without power; (e) cooperative society produced tea; (f)

goods produced in the North-East; (g) a number of food items including

bread, spices, coffee, khandsari sugar, cereals, edible oils and several

unbranded food items; (h) fertilizers; (i) unregistered branded garments,

clocks, watches upto Rs.500, electric bulbs upto Rs.20; (j) aircraft, ship and

boat; etc.

Further, the formulation of exemptions is extremely complex. Of the standard

publication of tariffs of 720 pages, 220 pages are devoted to exemptions.

There are 90 exemptions for textiles. For small scale industry, there are 5; for

exports, there are 20; for job work, there are 5, and so on. Each exemption has

many entries, conditions and lists, in turn, containing hundreds of items in

each list.

Credit is given on inputs manufactured in the North East even though no duty

is paid on such inputs. This is said to cause considerable leakage.

In the main notification which combines all exemptions for the different

chapters (3/2001CE), there are now 262 entries while in the previous year’s

notification (6/2000-CE), there were 259 entries. Thus, the list has expanded,

though marginally.

111

The Interim Report recommended that an intensive effort is necessary to

rationalize exemptions on the same subject through abolition and merger.

Conditions for exemptions must be minimized. When an item is covered

under the SSI exemption scheme, there should not be any separate exemption

except for some very valid reasons. SSI exemption should be extended to

textiles also by replacing the individual exemptions. Overall, there has been

no significant change in the area of exemptions.

SSI units receive concessional duty as well as full CENVAT credit. SSI units

below a turnover of Rs.3 Crores should pay a duty of 85-90 percent of the

normal rate if they opt for CENVAT credit. The 3 Crores turnover calculation

should not exclude exports and exempted goods produced by a SSI unit. SSI

units must maintain all records and give a declaration. Only really small units

with a turnover of Rs.15-20 lakhs should be exempted from

declaration/maintenance of records. The unutilised credit should lapse once

the Rs.1 Crores exemption limit is reached.

An important issue in expanding the base is the inclusion of services in the tax

net through comprehensive taxation of services. It is important to integrate

services as early as possible with the CENVAT to arrive at a full fledged VAT

at the Centre, perhaps as early as in the Budget of 2002-03, rather than to

continue with a separate structure of service taxation that cascades and causes

economic distortions. The Centre should also allow states to tax services so

that they can integrate services into their VAT base. A mechanism that would

make this feasible is elaborated below (see Section 7e).

112

Administration

While the VAT mechanism reduces tax induced economic distortions by

reducing cascading (of "tax on tax"), the aspect of input tax credit tends to

pose particular demands on administration. A substantially faster growth in

MODVAT credit vis-á-vis growth in gross revenue has caused concern

regarding potential misuse of MODVAT credit invoices. A field survey has

indicated that, besides procedural and technical offenses, other violations

included: (1) undervaluation of goods; (2) non-reversal of credit in respect of

returned rejected inputs; (3) misuse of facility of job work; and (4) availing of

credit on exempted final products; twice on the same invoice; without

payment of duty; by using fraud/fake documents. It appears that 10 percent of

revenue may be lost from these factors. There is also the perception that the

exempted SSI sector exacerbates the misuse of CENVAT credit invoices. As

the SSI sector has no interest in CENVAT credit invoices, the invoices

relating to their purchases have been misused by the non-exempted sector.

Thus rationalization of SSI exemptions from CENVAT should check evasion

over and above improving the excise structure.

The depot or other places of removal should be made into duty paying

agencies, with accounts-based checks and audits at regular intervals.

The fortnightly payment should be replaced by monthly payment to enhance

the liquidity of units and to reduce excessively stringent accounting needs.

Despite the move towards financial control, vestiges of physical restrictions

remain. When goods are returned by buyer to seller, in certain circumstances,

approval is necessary from the Chief Commissioner for re-entry of goods to

the factory. This is time consuming and unnecessarily exacerbates the need for

113

tax official—taxpayer contact. Reentry should be allowed on accounts based

self declaration or simple intimation to the Department.

Manufacturers may acquire spare parts for use or they may resell them. For

such trading activities, approval of the Department is needed which is

generally not given. Resale should be allowed on the basis of maintenance of

accounts and penalty imposed in case of misuse. On the whole, therefore,

excise administration should complete its movement towards financial control

from physical control based methods.

Researcher’s Observations

The recommendations made by the Advisory Group were very useful in

bringing simplicity in tax administration. The Government has accepted some

of the suggestions and accordingly changes were made in the following areas.

1. Concept of Deemed manufacture was introduced in the definition of

Manufacture u/s 2(f) of the Central Excise Act, 1944.

2. Rationalization in exemptions by merging the various exemption

notifications and issuing a mega notification No.12/2012-CE for

granting various exemptions.

3. The fortnightly payment replaced by monthly payment.(Rule 8 of

Central Excise Rules,2002)

4. Reentry of goods allowed on accounts based self declaration or simple

intimation to the Department.(Rule 16 of the Central Excise

Rules,2002).

5. Resale of goods allowed on the basis of maintenance of accounts.

However no changes were made in Cenvat Credit Provisions

114

Taxation of Services

1 An interim method that should enable states to tax services with

cooperation from the Centre and without the need for a Constitutional

amendment could be one where the Centre may levy the service tax on

them and authorize the states to administer/collect them. However, the

Centre and states must first arrive at a consensus on the list of services

that can be administered by the states.

2 The service tax collected by the states would have to first go to the

Consolidated Fund of India as per Article 266(2). After that, the

Centre would disburse an equivalent amount to the states. This interim

method has found favour with the Chief Ministers of states with whom

the Group discussed the matter.

3 The states should be given the powers to tax services whose

consumption is of an intrastate nature.

4 After the initial introduction, services could be incorporated into the

VAT.

5 The rate structure for the VAT on services should be identical to those

for goods to obviate distortions in producer and consumer decisions.

6 The state taxes like luxury and entertainment tax on restaurants, hotels

and other lodgings, professions tax, motor vehicles tax, goods and

passengers tax and electricity duty should be integrated with the state

level VAT.

115

7 Various public utility services that have scope for corporatization

should be brought within the state level VAT on services.

8 The VAT on services should be fully integrated with the VAT on

goods, both in its design and administration, with an appropriate

mechanism to set off service input tax against goods output tax and

vice versa. Therefore, a destination based, invoice credit method, dual

VAT—one at the central level and another at the level of states—

comprising both goods and services could be envisaged by the end of

the Tenth Plan.

9 The assignment of the powers to tax services to states must be viewed

as adequate compensation for revenue loss on account of abolition of

the central sales tax.

3.8.4 Task force on Direct Taxes10:

A Task Force on Direct Taxes was formed under the chairmanship of Dr.

Vijay Kelkar. The Task Force presented the consultation paper to the

Government on 2nd November 2002. The Task Force gave many

recommendations on Reform of Tax Administration, Search and Seizure,

Personal Income Tax, Corporate Tax Reforms, Taxation of capital gains.

The Task Force recommended the abolition of Wealth Tax. The Task Force

also recommended merger of tax on expenditure in hotels with service tax.

116

3.8.5 Tax Reforms Committee headed by Prof. Raja J. Chellaiah10:

The economic liberalization initiated in 1991 by the Government carried a

special focus on Tax Reform as it was felt that complexities in levy and

collection of tax could fetter economic activity. The Tax Reforms Committee

headed by Prof. Raja J. Chellaiah examined the Tax System and

Administration in the country. The Committee concluded that a simple,

credible and progressive system was necessary to improve Tax compliance.

The need for better relations between the Tax Collectors and Taxpayer was

also emphasized. The need to achieve both equity and efficiency in Taxation

was thought to be important.

3.9 Research papers presented in conferences or published in

Journals.

3.9.1 Research Paper: Federalism in India: Political Economy and

Reform:

M. Govinda Rao and Nirvikar Singh had authored a paper in Conference on

“India: Ten Years of Economic Reform”, at the William Davidson Institute,

University of Michigan, September 2001. According to the study 1999-2000

the central indirect tax to GDP ratio is 6.23 percent. The Tax Reform

Committee of 1991 had also recommended minimizing exemptions and

concessions, simplification of laws and procedures, development of modern,

computerized information system and improvements in administration and

enforcement (Rao, 2000a). Work in the mid -1990s by Das - Gupta and

Mookherjee (198, Chapter 6) detailed the problems with Indian tax

administration both in terms of incentives for paying taxes and those

117

enforcing them. A reform that more directly affects India’s federal system lies

in Indirect taxes, which, as noted have not increased proportionately with

GDP in the last decade. As Rao (2000a) mentioned “The most important

challenge in restructuring the tax system in the country is to evolve a

coordinated consumption tax system.” This problem has been recognized for

some time, and is clearly in need of correction, as also recommended by the

Eleventh Finance Commission in its report.

3.9.2 Revenue Forecasting and Estimation – Techniques and

Applications

Mr. Graham Glendy, Mr. Gangadhar Shukla and Mr. Robino Sugana

presented paper in Duke University (U.S) on the subject “Revenue

Forecasting and Estimation- Techniques and Applications”.

The study material contains information on Principles of Taxation and Tax

Reforms, Revenue Forecasting, Revenue implications of Excise Tax, Trade

Tax, VAT and Income Tax.

In the said presentation they have defined Taxation as “Taxation is the transfer

of real economic resources from the private sector to the public sector to

finance public sector activities.”

Regarding Excise Tax, the presentation contains useful information about

Economic Incidence of Excise Tax, Effect on revenue when tax rate changes,

Effect on revenue when income increases.

118

3.9.3 Public Finance in Open Economics (Duke University (USA)

Mr. Gangadhar Shukla and Mr. Graham Glendy presented paper in Duke

University on “Public Finance in Open Economics”.

The paper contains information on Public Finance, Principles of Tax Reforms,

Economic Principles of Tax Revenue Tax incidence and Tax Burden,

Taxation of Income and Wealth, Indirect Taxation, Trade Taxes, Taxation of

State owned enterprises, Impact of Inflation, Tax Incentives.

On the Tax Incentives, the paper contains useful information about Cost

Effectiveness of Tax incentives, Impact of Tax incentives, Types of Tax

incentives and Tax Holidays, Tax Neutrality and Neutral Tax Structure.

As regards tax incentives, the resource persons observed that if a country or

region has poor infrastructure and public services, then the loss of tax

revenues from cost ineffective tax incentives can be expected to make this

situation worse by lowering the government revenues needed to improve these

infrastructure and public services. Investment tax incentives may well be self-

defeating.

The authors reproduced the following thoughts of Arnold C. Harberger, in

“Tax Neutrality in investment Incentives”, in Aaron and Boskin (eds).

Economics of Taxation, (1980)

The design of incentives requires a good deal of care. Three aspects of the

design of tax incentives are covered. The first aspect is the cost effectiveness

of a tax incentive. A basic question is whether the tax incentive costs more in

119

forgone tax revenues than the tax revenues gained from the incremental

induced activity? The second feature is the actual impact of the tax incentive

on the effective tax rate of the investor. Given tax incentives are structured in

a number of different ways, it is not always clear by how much the effective

tax rate on the investment income has been reduced. The third design feature

that is investigated here is whether a tax incentive is neutral. A neutral

investment tax incentive picks the next best investment that would otherwise

not have been undertaken. A non-neutral investment incentive may result in

investments with low rates of return of return being made financially feasible

and not some investments with higher rates of return. This arises because the

low-rate-of-return investments get relatively larger incentives than the high-

rate-of-return investments. The loss of output through non-neutrality is clearly

economically inefficient. Neutrality is achieved when an incentive does not

induce new investments with low rates of economic yield, while failing to

induce investments with higher rates of economic yield.

3.10. GACAP and Cost Accounting Standards issued by the Institute of

Cost Accountants of India.

The Institute of Cost Accountants of India is set up under an Act of Parliament

and is an apex body in the area of cost and management accountancy. The

Institute has issued Generally Accepted Cost Accounting Principles and

following 18 Cost Accounting Standards with the objective to bring

uniformity in Cost Accounting.

120

Table 3.1. Cost Accounting Standards issued by the Institute of Cost

Accountants of India.

CAS No. Subject Date of

release

CAS1 Classification of Cost 08.04.2002

CAS2(Revised) Capacity Determination 21.07.2012

CAS3(Revised) Overheads 22.01.2012

CAS4 Cost of Production for Captive

Consumption

03.01.2003

CAS5 Determination of average (equalized) cost

of transportation

21.07.2005

CAS6 Material Cost 12.12.2008

CAS7 Employee Cost 12.09.2009

CAS8 Cost of Utilities 12.09.2009

CAS9 Packing Material Cost 14.12.2009

CAS10 Direct Expenses 14.12.2009

CAS11 Administrative Overheads 27.03.2010

CAS12 Repairs and Maintenance Cost 27.03.2010

CAS13 Cost of Service Cost Centre 25.02.2011

CAS14 Pollution Control Cost 31.03.2012

CAS15 Selling and Distribution Overheads 17.01.2013

CAS16 Depreciation and Amortization 20.05.2013

CAS17 Interest and Financing Charges 20.05.2013

CAS18 Research and Development Cost 08.10.2013

CAS19 Joint Cost 21.01.2014

121

3.11 Cost Accounting Records Rules - 2011

In exercise of the powers conferred by clause (b) of sub-section (1) of section

642 read with clause (d) of sub-section (1) of section 209 of the Companies

Act, 1956 (1 of 1956), The Ministry of Corporate Affairs issued The

Companies (Cost Accounting Records) Rules, 2011 on 3rd Jane 2011.

As per the said Rules, every company, including a foreign company as defined

under section 591 of the Act, which is engaged in the production, processing,

manufacturing, or mining activities and wherein, the aggregate value of net

worth as on the last date of the immediately preceding financial year exceeds

five Crores of rupees; or wherein the aggregate value of the turnover made by

the company from sale or supply of all products or activities during the

immediately preceding financial year exceeds twenty Crores of rupees; or

wherein the company’s equity or debt securities are listed or are in the process

of listing on any stock exchange, whether in India or outside India is required

to maintain cost records as per Generally Accepted Cost Accounting

Principles and Cost Accounting Standards issued by the Institute of Cost

Accountants of India .

These Rules do not apply to a company which is a body corporate governed

by any special Act;

The Rules define the manufacturing, processing, mining and production

activities as per the following.

122

“Manufacturing Activity” includes any act, process or method employed in

relation to -

(i) Transformation of raw materials, components, sub-assemblies, or parts

into semi-finished or finished products; or

(ii) Making, altering, repairing, fabricating, generating, composing,

ornamenting, furnishing, finishing, packing, re-packing, oiling,

washing, cleaning, breaking-up, demolishing, or otherwise treating or

adapting any product with a view to its use, sale, transport, delivery or

disposal; or

(iii) Constructing, reconstructing, reconditioning, servicing, refitting,

repairing, finishing or breaking up of any products. (k) “Mining

Activity” includes any act, process or method employed in relation to

the extraction of ores, minerals, oils, gases or other geological

materials from the earth’s crust, including sea bed or river bed.

“Mining Activity” includes any act, process or method employed in relation to

the extraction of ores, minerals, oils, gases or other geological materials from

the earth’s crust, including sea bed or river bed.

“Processing Activity” includes any act, process, procedure, function,

operation, technique, treatment or method employed in relation to-

(i) Altering the condition or properties of inputs for their use,

consumption, sale, transport, delivery or disposal; or

(ii) Accessioning, arranging, describing, or storing products; or

(iii) Developing, fixing, and washing exposed photographic or

cinematographic film or paper to produce either a negative image or a

positive image; or

123

(iv) Printing, publishing, finishing, perforation, trimming, cutting, or

packaging; or

(v) Pumping oil, gas, water, sewage or any other product; or

(vi) Transforming or transmitting, distributing power or electricity; or

(vii) Harboring, berthing, docking, elevating, lading, stripping, stuffing,

towing, handling, or warehousing products; or

(viii) Preserving or storing any product in cold storage; or

(ix) Constructing, reconstructing, reconditioning, repairing, servicing,

refitting, finishing or demolishing of buildings or structures; or

(x) Farming, feeding, rearing, treating, nursing, caring, and stocking of

living organisms; or

(xi) Telecasting, broadcasting, telecommunicating voice, text, picture,

information, data or knowledge through any mode or medium; or

(xii) Obtaining, compiling, recording, maintaining, transmitting, holding or

using the information or data or knowledge; or

(xiii) Executing instructions in memory to perform some transformation

and/or computation on the data in the computer's memory.

“Production Activity” includes any act, process, or method employed in

relation to -

(i) Transformation of tangible inputs (raw materials, semi-finished goods,

or sub-assemblies) and intangible inputs (ideas, information, know

how) into goods or services; or

(ii) Manufacturing or processing or mining or growing a product for use,

consumption, sale, transport, delivery or disposal; or

(iii) Creation of value or wealth by producing goods or services.

124

The rules provide for maintenance of productwise, unitwise cost records and

annually product groupwise compliance, to be submitted to Ministry of

Corporate Affairs.

“Product” means any tangible or intangible good, material, substance, article,

idea, know-how, method, information, object, service, etc. that is the result of

human, mechanical, industrial, chemical, or natural act, process, procedure,

function, operation, technique, or treatment and is intended for use,

consumption, sale, transport, store, delivery or disposal.

“Product Group” in relation to tangible products means a group of

homogenous and alike products, produced from same raw materials and by

using similar or same production process, having similar physical or chemical

characteristics and common unit of measurement, and having same or similar

usage or application; and in relation to intangible products means a group of

homogenous and alike products or services, produced by using similar or

same process or inputs, having similar characteristics and common unit of

measurement, and having same or similar usage or application.

Following Separate set of rules have been prescribed to the activities or

products.

(a) Cost Accounting Records (Pharmaceutical Industry) Rules, 2011

(b) Cost Accounting Records (Fertilizer Industry) Rules, 2011

(c) Cost Accounting Records (Sugar Industry) Rules, 2011

(d) Cost Accounting Records (Electricity Industry) Rules, 2011

(e) Cost Accounting Records (Petroleum Industry) Rules, 2011

(f) Cost Accounting Records (Telecommunication Industry) Rules, 2011

125

The product groups are based on the classification under Central Excise and

the base for quantitative information is excise records and excise Returns.

Therefore maintenance of cost records helps in tax management to a great

extent.

3.12 The Companies (Cost Audit Report) Rules, 2011.

In exercise of the powers conferred by clause (b) of sub-section (1) of section

642 read with sub-section (4) of section 233B, and sub-section (1) of section

227 of the Companies Act, 1956 (1 of 1956), and in supersession of the Cost

Audit Report Rules, 2001, the Central Government issued The Companies

(Cost Audit Report) Rules, 2011 on 3rd June 2011.

These rules apply to companies in respect of which an audit of the cost

records has been ordered by the Central Government under sub-section (1) of

section 233B of the Act. Accordingly The Ministry of Corporate Affairs have

issued following orders.

Cost Audit Report

The Companies Cost Audit Report Rules 2011, prescribes the Cost Auditor to

submit Cost Audit report alongwith his observations and suggestions and

Annexures to the Central Government in the prescribed form.

The Maintenance of Cost Accounting Records and Cost Audit have been

prescribed in respect of companies engaged in Manufacture; Production,

Processing, and Mining activities vide the Various Cost Accounting Records

Rules 2011 and Cost Audit Report Rules 2011. The activities covered under

Cost Accounting Records Rules and Cost Audit Report Rules are either

126

covered under Central Excise or Service Tax. The entire mechanism of Cost

Accounting Records and Cost Audit is based on the concept of Product

Groupwise reporting.

The product / activity groups have been classified under 267 groups.

Wherever a product is identified under first schedule to Central Excise Tariff

Act 1885, the same has been identified with reference to the 4 digit Chapter

Heading of the product. As per Notes to Annexure to the Compliance Report

under Cost Accounting Records Rules 2011, for produced / manufactured

product groups, the nomenclature as used in the Central Excise Act / Rules is

to be used and for service groups, the nomenclature as used in Finance Act /

service tax rules , as applicable to be used. Thus, the cost compliance is

closely linked with the Central Excise and Service Tax classification. Similar

is the case with Cost Audit.

As per Rule 22(3) of the Central Excise Rules, 2002, every assessee shall, on

demand, make available Cost Audit Reports to the officer empowered under

sub rule (1) or the audit party deputed by the commissioner. Cost Audit

Report is considered as one of the important tool for conducting the Central

Excise Audit , in particular EA 2000, as it provides quantitative and financial

details regarding production, clearance, capacity utilization, input output ratio,

related party transaction, valuation of captively consumed goods.

Due to change in format of information to be given in Schedule 6 to the

Annual Report, the quantitative details are not available in the Annual Report.

Therefore Cost Audit Report is the only authentic document which provides

quantitative as well as financial details regarding production, clearance, stock

etc.

127

The Annexures (Paras) to the Cost Audit Report help the assessee to ensure

tax compliance. It also helps in finding out revenue leakages.

The Annexures (Paras) to the Cost Audit Report contain following

information.

Annexure 1 :-

Annexure 1 contains the general information about the Company and Cost

Auditor.

Annexure 2 :-

The annexure contains information about cost accounting policy adopted by

the Company keeping in view the requirements of the Companies (Cost

Accounting Records) Rules, 2011, the Companies (Cost Audit Report) Rules,

2011, Cost Accounting Standards and its adequacy or otherwise to determine

correctly the cost of production/operation, cost of sales, sales realization and

margin of the product/activity groups under reference separately for each

product/activity group.

The information in this annexure is useful in complying with various

provisions of various Excise / Cenvat Rules such as

1. Treatment on non moving, obsolete goods in accounts:- Rule 3(5B) of the

Cenvat Credit Rules,2004, provides that if inputs or capital goods , before

being put to use , are written off fully or partly or any provision is made in

books of account to write off fully or partially , the manufacturer or

service provider is required to pay an “amount” equal to Cenvat credit

taken in respect of such inputs or capital goods . In case, the company has

128

a policy to write off / down the value of inputs periodically on account of

non moving nature of goods, the reversal of corresponding Cenvat credit

needs to be done.

2. Treatment of R & D Expenses :- as per rule 6 (1) of the Cenvat Credit

Rules, 2004, Cenvat Credit shall not be allowed on such quantity of input

used in relation to the manufacture of exempted goods or for provision of

exempted services. If company is engaged in any research activities,

which has not resulted in manufacture or clearance of excisable goods, and

if the company has availed Cenvat credit on inputs used in research

activities, it needs to be reversed.

3. Methodology for valuation of inter unit / intercompany and related party :-

In case of multi-locational companies, where the partly processed goods

are transferred to other units for further use in manufacture of goods, the

transfer price needs to be worked out as per Rule 8 of the Central Excise

Valuation Rules, 2000. CBE&C has clarified that the cost of production of

the captively consumed goods has to be determined as per Cost

Accounting Standard 4 (CAS4) issued by the Institute of Cost Accountants

of India.

4. Treatment of abnormal and non-recurring costs including classification of

other non-cost items:- the information about abnormal costs on account of

accident, theft etc is useful to verify whether the proportionate Cenvat

credit on the inputs and capital goods damaged / lost has been reversed or

remission of duty has been sought.

129

Annexure 3

The information in this annexure is to be submitted for a Company as a whole.

This Annexure contains following information.

Manufactured product group. The product group is linked with the

nomenclature as per Central Excise Tariff Act 1985

Service Groups – for Service group, nomenclature as per Finance Act /

Service Tax Rules is being used.

Product group wise details of Trading Activities.

Details of other Income

Net Sales (net of taxes and duties) to be specified and coverage of Cost

Audit to be mentioned

The Total Income shown in this annexure should match with the

income shown in the Profit & Loss A/c

The information in this annexure is useful in Tax Compliance in the

following manner –

1. Value reported in this Annexure may be compared with ER1 details.

This may not match with ER1 always because of different methods of

valuations adopted by the assessee, such as duty is paid on MRP, duty

paid under specific duty rate method etc. However, where the duty is

paid on the transaction value as per section 4 of the Central Excise Act

and where there are no stock transfers, the value shown in the said

annexure may be compared with the value shown in ER 1. The

analysis of difference in value shown in ER1 and value shown in this

annexure may help in finding out the mistakes, wrong accounting or

even removal of goods without payment of excise duty.

130

2. Amount shown in this Annexure in respect of service income should

match with the value of taxable services shown in ST3 Returns

submitted by the assessee. Analysis and reasons for difference may

help in finding nonpayment, short payment of service tax.

3. Details of trading activities are useful in verifying whether Cenvat

credit is availed on traded goods if the traded goods are similar to

inputs. Details of traded goods are also useful in verifying ratio used

for reversal of Cenvat credit under Rule 6(3) of the Cenvat Credit

Rules, 2004 since trading is considered as exempted service.

4. Details of other income may help in verifying the applicability of

excise duty, service tax on it.

Annexure 4

This annexure provides following Information, separately for each product

group

Capacity – installed, enhanced during the year, available through

leasing arrangement, loan licenses, third parties to be specified

Actual Production under each category to be given

Analysis of actual production and capacity vis-à-vis in house capacity

utilization can be made in Performance Appraisal Report

Details of stock purchased for trading from indigenous sources and

imports to be given separately.

Production as per excise records to be separately given and

observations on reconciliation to be made in the Audit Report.

131

The information in this annexure is useful in comparing –

1. The details of installed capacity with the information submitted to

Central Excise in ER7 Return. The details of addition /reduction in

installed capacity are useful in verifying the details of addition /

removal of capital goods and payment of excise duty / reversal of

Cenvat credit thereon under Rule 3(5) of the Cenvat Credit Rules

2004.

2. Actual production quantity with production quantity reported in

monthly Returns ER1. The Annexure provides the information in

respect of actual production and production as per excise records. The

reasons for difference in the production quantity as per production

reports and details submitted in ER1 Returns is useful in finding

removal of goods without payment of duty.

3. Details of stock purchased for trading may be useful in verifying

admissibility of Cenvat credit. Details of traded goods also help in

verifying ratio used for reversal of proportionate Cenvat credit under

Rule 6(3) of the Cenvat Credit Rules, 2004.

4. Details of captive consumption may be useful in ascertaining the duty

liability of the goods captively consumed if final product is exempt

from duty.

5. Details of quantity sold may be used in verifying details of quantity of

clearances as per Excise Returns ER1.

132

Annexure 5

Annexure 5 contains details of cost of production, cost of sales, profit / loss on

goods sold. This Annexure is to be submitted separately for each product /

activity group. Proforma and item of cost shown in the proforma can be

modified to meet the requirement of industry / product / activity group without

losing materiality factor. In case company follows Standard Costing System

element of cost to be reflected at actual after adjusting the variances therefore

the information contained in this annexure provides actual cost of production,

cost of sale, sales realization and profit / loss.

Usefulness in Central Excise Compliance

1. In case of goods captively consumed, Cost of Production can be

compared with the same given in CAS4 certificate by the assessee

from time to time. The cost of production reported at line item number

17 of the annexure may be useful in comparing the cost of production

submitted to the excise department. The information may be used to

find out differences on account of inclusion / non inclusion of various

overheads as prescribed in Cost Accounting Standard 4 issued by the

Institute of Cost Accountants of India. The information is useful in

finding out undervaluation of the goods captively consumed and

working of differential duty to be paid on it.

2. The comparison of cost details with the previous year may help in

understanding the changes in cost composition and analyzing the

reasons thereof.

133

Annexure 6

This Annexure contains operating ratio analysis in Tabular Format for each

product group separately. Ratio of operating expenses to cost of sales to be

worked out from following cost element.

1. Material cost

2. Utilities cost

3. Direct employees cost

4. Direct expenses

5. Consumable stores and Spares

6. Repairs and Maintenance cost

7. Depreciation /Amortization Cost

8. Packing Cost

9. Other Expenses

10. Stock Adjustment

11. Production Overheads

12. Administrative Overheads

13. Selling and Distribution Overheads

14. Interest and Financial Charges

The information in this annexure may be used for comparing value addition

and Cenvat / PLA payment ratio.

Annexure 7

The information in this Annexure is to be reported for company as a whole.

The annexure contains information about profit as per cost accounts, various

incomes and expenses not considered for costing and reconciliation of profit

134

as per cost accounts with profit before tax shown in the annual accounts of the

company.

As per generally accepted cost accounting principles (GACAP), income and

expenses that are abnormal in nature or purely financial in nature are not

considered as a part of cost accounts for computation of cost of production

and sales.

The details provided in this annexure may be useful in following:-

1. To ascertain applicability of excise duty / service tax on various other

income accounted in the books of account.

2. The information with respect to profit / loss on sale of capital goods may

be used in verifying applicability of Rule 3(5) of Cenvat Credit Rules,

2004.

Annexure 8

The information in this annexure contains statement of value addition and

distribution of earning for company as a whole. Value addition is to be

computed based on audited financial data and not based on cost data. The

information in this annexure is useful in comparing the ratio of payment of

excise duty from Cenvat credit and PLA payment.

Annexure 9

This Annexure contains information in respect of financial position and ratio

analysis for the company as a whole. The information may be useful in

understanding the trend analysis.

135

Annexure 10

This Annexure contents details of transactions with related party and is to be

reported for company as a whole. The report is considered as incomplete in

absence of the information on normal price & basis thereof. The information

given in this Annexure is to be in line with Accounting Standard AS-18 issued

by the Institute of Chartered Accountants of India. The Prices shown in this

annexure are inclusive of the Excise Duty, VAT/CST and other levies, as

applicable. Normal Market Price means the price at which transaction has

been made with other non-related parties at the time of transaction.

The information in this annexure may be useful in following,

1. Ascertaining applicability of Central Excise Valuation Rules, 2000, in

particular valuation of goods transferred to other units for captive

consumption or trading.

2. Working out Service Tax liability in the case of services provided to or

received from Associated Enterprises.

Annexure 11

The information for the said Annexure is required to be given for company as

a whole. This Annexure contains information with respect to duties and taxes

payable, paid and recovered and also interest, penalties paid by the assessee.

The information in this annexure contains details of Assessable Value, Excise

Duty, Service Tax, and Education Cess & Higher Education Cess on Excise

duty & VAT, CST. Since Tax Base for Excise & VAT are different the same

needs to be shown separately. The details in this annexure need to be reported

chapter heading wise. The information about taxes payable & paid through

Cenvat & PLA is also available in this annexure.

136

The details in respect of duties and taxes paid and recovered are to be shown

separately in this annexure. The difference in taxes/ duty paid, payable and

recovered are mainly on account of following reasons –

1. Cenvat Credit utilised/reversed but corresponding entry for the same has

not passed in books of account.

2. Refund of Cenvat credit under Rule 5 of the Cenvat Credit Rules, received

from excise not accounted correctly in Cenvat credit register / books of

account.

3. Interest, penalty, Misc Charges paid through PLA Not accounted for in

ledger.

4. Debit Notes & Credit Notes issued but not accounted properly while

determining the duty liability, service tax.

5. Duties and Taxes recovered from the customers but not accounted

correctly.

6. Excise duty payable on free samples.

This Annexure is specifically designed for Indirect Tax Compliance.

Performance Appraisal Report

The Companies (Cost Audit Report) rules 2011 notified by the Ministry of

Corporate Affairs vide GSR 430(E) dated 3rd June 2011 mandates submission

of Performance Appraisal Report in Form III to the Board of Directors of the

Auditee Company and is not required to be filed to the Central Government

alongwith the Cost Audit Report. The Performance Appraisal Report is

popularly referred as Form-III reporting to Board. This is a landmark in the

history of companies in India, as this is the first time that a statutory

prescription has been notified for an external Auditor to prepare and submit a

Performance Appraisal Report to the Company management. Performance

137

Appraisal Report contains performance measures about the company’s

products, services and the processes. Form-III reporting contains performance

indicators such as knowing how well the company is doing, where it is

meeting its goals, whether its customers are satisfied, and whether appropriate

actions have been taken to improve the efficiency and whether improvements

are necessary etc. It is concerned with providing the Board with information

that it “should know” to take suitable actions to improve business

performance. The Performance Appraisal Report is more on principal based

than format driven. The Report helps the management in tax compliances.

3.13 Review of thesis presented as a part of study

3.13.1 Student Works- LLM thesis - University of Georgia School of Law

Title: The Challenges of Tax Collection in Developing Economies (with

Special Reference to India) by Pramod K. Rai, University of Georgia School

of Law

Page no 1052 The Chartered Accountant, January 2006.

Most developing and underdeveloped countries, including India, are

characterized by the existence, in greater degree of unutilized manpower on

the one hand and of unexploited natural resources on the other, but they have

aspirations to become developed countries. Developing countries are trying to

fulfill the increasing developmental needs of their country and people by way

of public expenditure within their limited resources. Indirect taxes are a major

contributor of the revenue in developing economies.

138

Central Excise Duty on goods manufactured/produced domestically and

Customs Duties on imported goods constitute the two major sources of

indirect taxes in India and represent more than 60 percent of central tax

revenue. But revenue receipts from Customs and Excise are on the decline due

to World Trade Organization (WTO) commitments and rationalization of

commodity duties. Therefore, governments of developing economies must

find alternative sources of revenue and must pay more attention especially to

direct taxes. The tax systems of these countries should be designed to reduce

the risks of macroeconomic instability by improving the organization and

operation of tax administration.

This paper has focused on the dispute resolution system of central excise

cases. The dispute resolution systems of other taxes are the same with minor

variations.

3.13.2 An Analytical Study for Redesigning of Central Excise Audit

Procedure for SSI Units with reference to Nasik Industrial Estate

A thesis submitted to Yashwantrao Chavan Open University, Nasik for the

Degree of Doctor of Philosophy in Management by Mrs Shilpa Parkhi. The

thesis mainly discusses the aspects related to audits of small scale units but no

discussion on the tax planning was found in it.

139

3.14 Report of the Comptroller and Auditor General of India on

Indirect Taxes (Central Excise and Service Tax) for the year ended

March 201211.

Report of the Comptroller and Auditor General of India on Indirect Taxes

(Central Excise and Service Tax) for the year ended March 2012 was laid on

the table of Lok Sabha and Rajya Sabha on 23rd August 2013.

The Audit of Revenue Receipts – Indirect Taxes of the Union Government is

conducted under Sec 16 of the Comptroller and Auditor General of India’s

(Duties, Powers and conditions of Service) Act, 1971 and the Report has been

prepared for submission to the President of India under Article 151(1) of the

Constitution of India.

The Report contains 239 audit observations pertaining to Central Excise

Duties and Service Tax, having a total revenue implication totaling Rs. 569.55

Crores.

Following significant findings are reported in the said Report.

a) Indirect Tax revenues as a percentage of Gross Domestic Product

decreased from 5.24% in FY2002-03 to 4.38% in FY 2011-12. During

the same period, Central Excise Revenues (PLA) as a percentage of

GDP declined from 3.25in FY03 to 1.61 in Fy12 and Service Tax

revenues as a percentage of GDP rose to 1.09% from 0.16%.

140

b) Revenues forgone on account of Central Excise exemptions continued

during FY12. Exemptions u/s 5A(1) of the Central Excise Act

amounted to Rs. 1,95,590/- Crore which consist of Rs. 1,79,453/-

Crore in general exemptions and Rs.16137/- Crore in area based

exemptions which is 135% of the revenues from Central Excise.

c) Cases involving Central Excise Duty of Rs.54172.65 Crore were

pending as on 31st March 2012 with different authorities for

adjudication / final decision. The figure in respect of service tax was

even higher at Rs. 73274.74 Crore.

d) Nearly 50% of Service Tax Assessee paying revenue over Rs. 1 Crore

annually and due for audit by Central Excise and Service Tax

department remained unaudited during FY 2011-12.

e) 634 audit paragraphs involving Central Excise duty totaling

Rs.1429.42 Crore were reported during the last five years. The

Government had accepted audit observations in 502 paragraphs

involving Rs.533.08 Crore and had recovered Rs.185.09 Crore.

f) 858 audit paragraphs involving service tax totaling Rs.1519.42 Crore

were reported during the last 5 years. The Government had accepted

audit observations in 793 audit paragraphs involving Rs.1208.26 Crore

and had recovered Rs.353.85 Crore.

141

g) Instances of incorrect availing/ utilization of Cenvat credit, short

payment of duty / tax and nonpayment of interest on delayed payments

involving revenue implications of Rs. 61.44 Core and Rs.478.04 Crore

in Central Excise and Service Tax respectively were observed.

h) Instances of deficiencies, in scrutiny and internal audit process,

ineffective call book review and non recovery of Government dues by

departmental officers were also observed. Duty / Tax involved were

Rs.30.07 Crore were observed.

i) Following major causes were observed.

Non reversal of Cenvat credit in respect of inputs and input

service used in generation of electricity not used in

manufacture.

Short payment of duty on petroleum products sold to oil

companies.

Nonpayment of service tax by Manpower Recruitment and

Supply agency services.

Incorrect availing of exemption under Service Tax.

Nonpayment of service tax in respect of import of services.

Premature availing and utilization of Cenvat credit.

Non maintenance of separate account for dutiable and

exempted products.

Non reversal of Cenvat credit relating to exempted services.

142

The following table traces the growth of Central Excise Collections during

FY03 to FY12. During FY12, Central Excise collections grew by 5.23%over

previous year. However, the share of Central Excise in gross revenues has

decreased from 38.06% (FT03) to 16.20% (FY12) during the period. Central

Excise revenues expressed as a percentage of GDP has suffered a similar

decline.

Table 3.2 – Revenue from Central Excise

Year CE(PLA) %Growth

Over

Previous

year

GDP CE as %

of GDP

Gross Tax

Revenues

CE as

a % of

Gross Tax

Revenue

FY03 82310 - 2530663 3.25 216266 38.06

FY04 90774 10.28 2837900 3.20 254348 35.69

FY05 99125 9.20 3242209 3.06 304958 32.50

FY06 111226 12.21 3693369 3.01 366152 30.38

FY07 117613 5.74 4294706 2.74 473512 24.84

FY08 123611 5.10 4987090 2.48 593147 20.84

FY09 108613 -12.13 5630063 1.93 605298 17.94

FY10 102991 -5.18 6477827 1.59 624527 16.49

FY11 137701 33.70 7795313 1.77 793307 17.36

FY12 144901 5.23 8974947 1.61 889118 16.30

From the above table, it can be inferred that Cenvat credit utilization shows

increasing trend.

143

The Report also observes that following are Top Revenue Yielding

Commodities and Services.

Table 3.3 -Revenue share of major commodities in FY12

Commodity Revenue share

Petroleum 46%

Tobacco 11%

Iron and Steel 9%

Motor Vehicles 6%

Chemicals 6%

Cement 5%

Machinery 4%

Others 13%

Table 3.4 -Revenue share of Services in FY12

Service Revenue Rs. Cr.

Banking and Financial Services 5875.91

Telecommunication Services 5402.45

Business Auxiliary Services 5255.64

General Insurance 5233.57

Business Support Services 4344.88

Renting of Immovable Property 4339.77

Works Contract 4179.00

Manpower Recruitment 3847.14

Maintenance and Repair Services 3494.98

Goods Transport by Road / GTA 3407.24

144

Central Excise and Service Tax receipts and Cost of Collection

The report provides information on Cost of Collection of Indirect Taxes. It is

observed that cost of collection of Indirect Taxes is always less than 1% of the

tax collection.

Table 3.5 – Cost of Collection of Indirect Taxes.

Year Central

Excise

Service

Tax

Total

Receipts

Cost of

Collection

As a% of

Total

Receipts

FY03 82310 4122 86432 703 0.81%

FY04 90774 7891 98664 751 0.76%

FY05 99125 14200 113324 826 0.73%

FY06 111226 23055 134281 895 0.67%

FY07 117613 37598 155211 975 0.63%

FY08 123611 51302 174912 1107 0.63%

FY09 108613 60941 169554 1650 0.97%

FY10 102991 58422 161413 2127 1.32%

FY11 137901 71016 208917 2072 0.99%

FY12 144540 97356 241896 2262 0.94%

145

3.15 Official Website of Central Board of Excise and Customs -

www/cbec.gov.in

This is an official website of Central Board of Excise and Customs. It

provides very useful updated information with respect to Central Excise,

Service Tax and Customs Notifications, Circulars, Instructions, Budget

Provisions, Baggage Rules, Exchange Rate Notifications, Information under

Right to Information Act, Frequently Asked Questions and Transfers and

Postings of officers.

Observations

Out of all the sources those are explored for Review of Literature it has been

observed that various committees and scholars have addressed some aspects

of Indirect Taxes. However systematic efforts have not been made to study

various areas available for tax planning under Indirect Taxes and its impact on

the cost of production. An attempt therefore has been made by the researcher

to study these aspects in detail and offer suggestions for effective tax planning

and decision making at corporate level. The researcher has identified certain

areas where systematic efforts can be made by way of tax management and

tax planning which will help in reducing cost of product or service by non

conventional way .Thus, this chapter provides foundation on the basis of

which the objectives and hypothesis of the study are formed.

146

3.16 Exemptions under Central Excise

Introduction

The scope of Tax planning is much wider. It aims at reducing tax liability to

the minimum. Though it is an ongoing activity, it is futuristic in its approach

and results in substantial benefits over a period. It includes availing all

concessions and reliefs permissible under the law and arranges business

activities in the manner which will minimize the incidence of tax. Under

Central Excise, Customs and Service Tax, concessions are given either by

way of providing Nil rate of duty in the Tariff or by issuing exemption

notifications. Some exemptions are unconditional whereas in some cases, to

avail benefit certain conditions need to be fulfilled.

Central Excise Duty is payable on excisable goods manufactured or produced

in India. Excisable goods are those goods specified in the First Schedule to

Central Excise Tariff Act,1985. Goods which attract excise duty as per first

schedule to Central Excise Tariff are known as dutiable goods. Goods which

attract “Nil” rate of duty are called as non dutiable goods. Goods on which

duty is payable under notification issued by the government are called as

exempted goods. All dutiable, non dutiable and exempted goods are excisable

goods. Excise provisions are applicable to all dutiable or non dutiable. Excise

provisions are not applicable to non excisable goods as they are not mentioned

in tariff at all.

Central Excise Rules grant exemption from duty if goods are exported under

bond / undertaking except exports to Bhutan.

147

Since Special Economic Zones are governed by special SEZ Act, goods

manufactured in SEZ are ‘excluded excise goods’ and therefore no duty is

payable on goods manufactured in SEZ.

About Exemption Notifications

Section 5A (1) of the Central Excise Act, 1944 authorizes Central

Government to exempt excisable goods from excise duty if it is in the interest

of public. Based on the various provisions and analysis of decisions of Courts

and Tribunals, following information is compiled by the researcher for easy

understanding.

a) The exemption can be general or specific either absolute or subject to

any condition which is to be fulfilled before removal of goods.

b) The exemption can be from whole or part of excise duty leviable.

c) The exemption notification becomes effective on the date on which it

is issued for publication in gazette.

d) Exemption applies only to duty levied under Central Excise Act and

not to duty imposed under any other statute.

e) Since Notifications are issued under delegated legislative powers and

has legislative character, they have statutory force.

f) Notifications cannot have primacy over statutory rules.

g) Exemption is a concession given under legislative powers, it can be

withdrawn any time under the same powers.

h) Exemption can be granted with retrospective date but can be

withdrawn retrospectively only by the Parliament.

i) Some exemptions are optional but absolute exemption is compulsory.

148

j) If there are two provisions under which an assessee can claim some

benefit, the assessee can choose any one of it.

k) Simultaneous availment of two exemptions is permissible.

l) An exemption notification should be construed strictly. There is no

scope for any intendment or extended meaning. Also the interpretation

should be strict.

Presently there are more than 135 exemption notification in effect. The

various exemption notifications issued under Central Excise can be

classified as per following.

a) Exemption to small scale manufacturers.

b) Exemption to Job Work.

c) Exemption to goods captively consumed i.e. goods used within the

same factory of production.

d) Exemption to goods manufactured by village industry and marketed by

or with the assistance of Khadi and Village India Corporation or

certain specified goods manufactured in rural area.

e) Exemption to specified goods meant for repairing, reconditioning and

re engineering.

f) Exemption to goods sent abroad for exhibition in International Trade

Fair or for demonstration or carrying out tests or trials.

g) Exemptions to goods produced in or for technical, educational and

research institutes.

h) Exemptions to goods manufactured in Government factories, mines,

mints and prisons and defense production etc.

i) Exemption for goods cleared by four specific refineries in the North

East India.

j) Exemptions to solar and other natural energy, chulhas and nuclear fuel.

149

k) Exemptions to Export Oriented Units, Software Technology Park and

EHTP.

l) Exemption to goods meant for use in Export Goods / Services.

m) Exemption to Ship, Ship’s Stores and Ship Breaking.

n) Set off of duty on specified goods.

o) Exemptions to goods for specific use or purpose.

p) Exemptions to goods produced in specific areas like North East, J &K,

Uttarakhand, Himachal Pradesh, Sikkim and Kutch.

q) Effective rates of duty for goods of various chapters.

r) Export Promotion Schemes.

s) Miscellaneous Exemptions.

The important notifications are analyzed and researcher has made an attempt

to present how these are used effectively in tax planning.

3.16.1 Excise Exemption to Small Scale Industries. (SSI)

To encourage the growth of small scale industries, various benefits including

subsidies, grants, and exemptions from excise duty are given to SSI.

Notification No.8/2003-CE dt. 01.03.2003 is the basic notification granting

concessions to SSI under Central Excise.

Eligibility:-

SSI units having turnover less than Rs.4 Crores in the previous financial year

can avail benefit of the said notification. All industries irrespective of their

investment or number of employees are eligible for concession.

150

The SSI unit intending to avail benefit of the said Notification is not entitled

to avail Cenvat credit on inputs and input services. However, he can avail

Cenvat credit on capital goods but can utilize the same only after he starts

paying excise duty on the goods produced or manufactured by him.

Goods manufactured with other’s brand name are not eligible for the benefit

of the said notification. However, simultaneous availment of Cenvat and SSI

exemption permissible when SSI manufacturing with other’s brand name but

not in other case.

Following items are not eligible for SSI Exemption.

Chapter

Head

Item

0902 Tea, whether flavoured or not.

2101 Extracts , Essences and concentrates of coffee, tea, mate or

preparations thereof

2102 Yeast.

2103 Sauces and preparations thereof.

2104 Soups and broths and preparations thereof.

2105 Ice cream

2106 9020 Pan Masala

23 Residues and waste from food industries, Prepared Animal

Fodder.

24 Tobacco Products

30 Sterile absorbable surgical or dental yarns and sterile surgical

or dental adhesion barriers.

33012937 Sandalwood Oil

3605 Matches (except Bengal light)

151

Chapter

Head

Item

3701, 3702 Photographic plates and films.

3703 Photographic paper and paper board.

39 Articles of polyurethane foam.

50 to 63 Specific Textile products.

69 Ceramic Tiles

72 Stainless Steel Patties / pattas

7403 Refined copper and copper alloys

7407 Copper bar of refined copper and copper alloy.

7408 Copper wire with over 6 mm cross section.

7409 Copper plates, sheets, circles and strips exceeding).15 mm.

7414 Cloth, grill and netting of copper wire, expanded metal of

copper.

76 Aluminum circles whether trimmed or not.

84 Power driven pumps for water not confirming to BIS.

8701 to

8706

Tractors, Motor Vehicles, cars, chassis.

8711 motorcycles and mopeds.

9101, 9102 Watches having retail price more than Rs.500/-

9302 Revolvers and Pistols.

9303 Other firearms and similar devices.

9304 Other arms such as spring, gas or airguns and pistols.

96050010 Travel Sets for personal toilet.

Observation:- Most of the above items are eligible for concessional rate of

duty or exemption under other exemption notifications, though not under SSI

exemption.

152

Method of calculation of Turnover

SSI benefit is available to those manufacturers having turnover of less than

Rs.400 Lacs in the previous financial year. The notification uses the words

“first clearance on or after 1st April in any financial year”. Therefore the

exemption limit has to be calculated from the beginning of the year only.

Inclusions and Exclusions while calculating limit of Rs.400 Lakhs.

Exclusions

1. Export Turnover, except export to Nepal and Bhutan.

2. Export under Bond through merchant exporter.

3. Deemed export such as goods cleared to EOU, EHTP or STP unit

under CT3 form.

4. Turnover of non excisable goods.

5. Goods manufactured with other’s brand name cleared on payment of

duty.

6. Intermediate products or captive consumption when final product

eligible for SSI exemption.

7. Job work amounting to manufacture done under Notification Nos.

214/86-CE, 83/94-CE and 84/94-CE.

8. Job work or any other process or any activity, which does not amount

to manufacture.

9. Turnover of clearance of inputs as such.

10. Trading turnover.

153

Inclusions

1. Turnover of goods exempted under other notifications.

2. Goods manufactured in rural area with other’s brand name.

3. Captive consumption if used in manufacture of final product which is

exempt under any other notification.

4. Export to Nepal or Bhutan.

5. Goods cleared with payment of duty.

SSI exemption is available to first clearances upto Rs. 150 Lakhs. SSI units

having turnover of less than Rs.400 Lakhs in the previous year are eligible to

avail benefit. These units are exempted from payment of excise duty upto first

clearances of Rs.150 Lakhs in the current year. Generally provisions for

calculation of turnover of Rs.400 Lakhs and Rs.150 Lakhs are similar.

However, the major distinction between the calculations of Rs.400 Lakhs and

Rs.150 Lakhs turnover is for the purpose of calculating Rs.150 Lakhs,

turnover of goods exempted under other notifications is not to be considered.

Clubbing of Turnover

As per Notification No.8/2003-CE SSI exemption is available if aggregate

value of clearances of all excisable goods for home consumption by a

manufacturer from one or more factories, or from a factory by one or more

manufacturers does not exceed the prescribed limit.

Sometimes, as a tax planning, a manufacturer starts another unit by same

name or even under another name by the same owner to avail benefit of SSI

Concession. If the other unit belongs to same proprietor or same partnership

154

firm or same company, the turnover of both units will be added together for

purpose of SSI concession. If such other unit is genuinely separate or

independent, their turnover is not required to be clubbed. However, if the

other unit is bogus or sham unit, the turnover of all such units will be clubbed

for the purpose of calculating SSI exemption limit. This is called as clubbing

of turnover.

It is pertinent to note that, there are various forms of ownership of an

undertaking such as proprietorship, partnership firm, private limited company,

public limited company, co operative society, trust etc. All these forms of

ownership have separate legal status and existence. Clubbing provisions can

be applied if units belong to the same entity such as same proprietor, same

company or same firm. Turnover of two different units owned by different

form of organizations cannot be clubbed. Even turnover of subsidiary cannot

be clubbed with the holding company.

The researcher has observed that opening a dummy unit is very common

method used by many assesees. This is not a proper tax planning but a

method. The researcher in one of the case has observed that a person engaged

in manufacture of PVC pipes and pipe fittings started 14 different units in the

name of his family members but the control, signing powers etc was with only

one person. There was financial flow back also amongst these units. The

manufactured goods were supplied to one customer only. The excise

department clubbed the turnover of all 14 units and ultimately he had to pay

duty, interest and 100% penalty on the turnover during last five years. The

wrong method used for tax planning proved to be costly. Therefore, while

availing benefit of SSI Exemption, one has to be very careful.

155

Procedural Concessions to SSI

1. SSI units have to pay excise duty on quarterly basis by 5th of the

following quarter. This benefit is available to SSI units who avail the

benefit of SSI Notification or even otherwise also. This helps SSI unit

to arrange cash flow and save interest cost.

2. SSI units not covered under excise provisions have to follow

simplified procedure for export.

3. Rule 4(2) (a) of Cenvat credit Rules provides that Cenvat credit on

capital goods is to be availed in two installments. One upto 50% in the

year of receipt of capital goods and balance 50% in any subsequent

following year. However as per second proviso to the Rule 4(2)(a) of

Cenvat Credit Rules, SSI units can avail entire Cenvat credit on capital

goods in first year. This helps SSI unit to arrange cash flow and save

interest cost.

4. SSI units availing exemption under Noti. No.8/2003-CE having

turnover below Rs.150 Lakhs are exempt from registration under

central excise and do not have to follow any excise formality. Thus

SSI units can save in administrative cost.

5. Excise officers including inspectors, preventive officers and audit

parties can visit SSI units only with the prior approval and specific

permission of the Assistant Commissioner. Thus SSI units can save

administrative cost and time in attending excise officials.

156

6. Government has established help centers for SSI units in associations

with local chamber of commerce / associations.

Options available to SSI unit

1. SSI unit can avail full exemption upto Rs.1.5 Crores and pay normal

duty thereafter. Such units can avail Cenvat credit on inputs and input

services only after reaching turnover of Rs.1.5 Crores in the financial

year,

2. SSI unit can pay full excise duty (i.e. 12.36% on AV) and avail Cenvat

credit.

3. SSI unit can opt out from SSI exemption scheme anytime during the

year. However, once he opts out from the scheme, he can not avail

benefit during the said financial year.

Suitability of option 1

For Manufacturer:-

1) When final product is sold to ultimate consumer, who does not use

it in further processing and / or where no Cenvat credit is available

to buyer, the product becomes cheaper approximately by 3 to 4 %

to buyer and therefore sale of the product can be increased. By

increasing sale of goods, production and capacity utilization can be

improved and fixed cost per unit is reduced. Thus the manufacturer

achieves two benefits- a) increase in sale and b) reduction in fixed

cost per unit. Examples of the products under this category are

157

small hand tools which are generally used by mechanics or

carpenters, printing ink used by printers, soaps, cosmetic articles,

toothpaste, toothbrush, furniture etc. This option is generally

followed by the manufacturers who do not clear their products to

industrial consumer but are sold in the market only.

2) In case of substantial exports by SSI unit, he can avail Cenvat

credit; pay duty and claim rebate after export of goods or can claim

refund of unutilized Cenvat credit under rule 5 of the Cenvat credit

rules. However, such refund is only of Cenvat of inputs and input

services.

3) However, compliance cost of SSI , i.e. salary, time spent by top

management , stationery, legal advisor , litigations etc as a

percentage of duty paid was found to be 4.68% in the case of small

scale industry, whereas it was found to be 0.84% in case of large

units where turnover was more than Rs.200 Crores (Ref

V.S.Datey- Central Excise -5.3).

For Buyer:-

1) Branded Goods:- SSI exemption is available to branded goods

manufactured in rural area. If branded goods are manufactured in

rural area, no duty is payable upto first clearances of Rs.150 Lacs.

But if the same branded goods are manufactured in urban area,

benefit of SSI exemption is not available and therefore excise duty

is payable from the first rupee. Therefore buyer, who sells his

products under brand name can use this for make or buy decision.

The buyer can provide necessary technical support to SSI units and

158

procure the goods at a cheaper rate at least by 4 %. Buyer can sell

such products under trading and become competitive in the market.

Observations

The researcher noticed that this option has been used by the following

persons in a different capacity.

Buyer

1. A leading Branded Tools Manufacturer of hand tools such as

screwdrivers, spanners etc. has used this option. Their products

are mainly purchased by the service providers such as electricians,

carpenters, motor mechanics. Generally these service providers do

not avail Cenvat credit and therefore prefer buying tools at a

cheaper rate. The Company provided necessary technical support

to buyers and also ensures quality of the tools manufactured by

their vendors / job worker. The Company sells their goods under

brand name.

2. A Company is engaged in manufacture of home appliances such as

mixers, juicers, tea makers etc. Their products are generally sold to

domestic users and are using this method in make or buy decision.

3. A Company is engaged in manufacture of electrical fans. Generally

Cenvat credit on fans is not available as they are used in office.

Also the product is generally sold to domestic users. The Company

is procuring Fans from SSI units under the brand name. The

Company has been using this method in make or buy decision.

159

4. A company is engaged in manufacture of PVC pipes and fittings.

Their product is generally sold to farmers or construction industry

where customers are not entitled to avail Cenvat credit on pipes

and pipe fittings. The Company is using this method in getting the

products manufactured from SSI units.

Government:-

It is administratively inconvenient and costly to collect revenue from

numerous small and tiny units. (1998(104) ELTA29).Therefore

providing concessions to SSI units also provides administrative

benefits to Government.

Suitability of option 2:-

1) When buyer is an industrial unit and uses the goods procured from

SSI as inputs or capital goods and can claim Cenvat credit on it,

the effective cost will be lower as SSI unit can claim Cenvat credit

on his inputs, input services and capital goods. Also in case of SSI,

administrative cost, employee costs are lower than big units.

Therefore buyers can buy goods from SSI at lower prices. This

option is used by the buyers who are in a position to avail Cenvat

credit of the duty paid by the SSI units.

160

3.16.2 Area Based Exemptions

To encourage development in backward area, as a policy exemption from

excise duty, for the period of ten years has been granted to goods

manufactured by new units or existing units undertaking substantial expansion

in the following areas.

Table 3.6 – Area Based Exemptions

Area Notification Numbers.(Effective as of

date).

Kutch District of Gujarat 39/2001-CE dt.31.01.2001

Jammu and Kashmir 1/2010-CE dt.06.02.2010

North Eastern Region and Sikkim 20/2007-CE dt.25.04.2007

Himachal Pradesh 49/2003-CE dt.10.06.2003

Uttarakhand 50/2003-CE dt. 10.06.2003

Scheme for exemption in Kutch, Jammu & Kashmir and North Eastern

Region & Sikkim

Till 31.03.2008, the scheme provided that the units in the said area can avail

Cenvat credit and pay excise duty on the final products. Entire duty paid in

cash / through Personal Ledger Account (PLA) is refunded next month or self

credit was allowed. The provision is that duty should be paid first and then

refund can be claimed. The exemption notifications provide for refund of

excise duty paid under Central Excise Act. Refund of Education Cess and

Higher Education cess is not permissible since Education Cess and Higher

Education Cess are levied under Finance Act.

161

From 01.04.2008, the scheme has been amended to provide refund only to the

extent of duty payable on value addition. Standard productwise value addition

has been specified in the circulars / notifications issued by CBE & C. If any

manufacturer claims that his actual value addition is much higher than what is

specified, he can apply to Asst. / Deputy Commissioner of Excise to get value

addition rate fixed for his product.

The exemption does not apply to following goods.1

i) Pan Masala falling under Chapter 21 of the First Schedule to CETA.

ii) Goods falling under Ch 24 of the first Schedule to CETA, i.e. Tobacco

and manufactured Tobacco Substitutes.

iii) Plastic carry bags of less than 20 microns as specified by the Ministry

of Environment and Forests Notification No. S.O.705 (E)dt. 2nd

September 1999 and S.O. 698 dt. 17th June 2003.

The exemption does not apply to goods manufactured by following .1

i) Numaligarh Refineries Ltd. (NRL).

ii) Bongaigaon Refinery and Petrochemicals Ltd (BRPL).

iii) Indian Oil Corporation, Guwahati.

iv) Assam Oil Division, Indian Oil Corporation, Digboi.

The Exemption does not apply to such goods which have been subjected to

only one or more of the following processes, namely.1

i) Preservation during storage.

ii) Cleaning operations.

iii) Packing and repacking of such goods in a unit container or

iv) Labeling or relabeling of containers,

v) Sorting,

vi) Declaration or alteration of retail price

162

vii)Have not been subjected to any other process or processes amounting

to manufacture in the States of Assam or Tripura or Mizoram or

Manipal or Nagaland or Arunachal Pradesh or Sikkim.

Exemption to New Units in Himachal Pradesh and Uttarakhand.

Notification No.49/2003-CE and 50/2003-CE provide exemption from duty

to goods manufactured by units in Himachal Pradesh and Uttarakhand

respectively. The salient features of the scheme enumerated in the said

notifications and subsequent clarifications issued by Central Board of Excise

and Customs (CBE&C) are as per the following.

Applicability

Scheme for Exemption in J& K, Kutch and North East Area availment of

Cenvat credit and Refund of duty paid through PLA (Personal Ledger

Account). Whereas in case of units in Himachal Pradesh and Uttarakhand

there is a direct exemption from excise duty on the goods manufactured by

units in Uttarakhand and Himachal Pradesh.

The benefit is available to new industrial units, which have commenced

commercial production on or after 07.01.2003 but not later than 31st March

2010. Vide circular No.939/29/2010-CX dt. 22.12.2010, CBE&C has clarified

that any new unit which has undergone substantial expansion that commences

commercial production before the cut-off date is entitled to excise duty

exemption in respect of excisable goods (other than appearing in negative list)

manufactured and cleared for a period of ten years from the date of

commencement of commercial production. The provisions of these

notifications do not place a bar or restriction on any addition/ modification in

163

the plant or machinery or on the production of new products by an eligible

unit after the cut-off date and during exemption period of ten years as per the

notification. The benefit of excise duty exemption under the notifications

would continue to be available to eligible industrial units. However, the period

of exemption would remain ten years and would not get extended on account

of such modifications or additions under any circumstances.

Industrial units existing before 7th Jan 2003, but which have undertaken

substantial expansion by way of increase in installed capacity by not less than

twenty five percent, on or after 7th January 2003, but have commenced

commercial production from such expanded capacity, not later than 31st

March 2010 will be eligible for exemption.

The exemption shall apply to units for a period not exceeding ten years from

the date of publication of the said notifications in the official gazette or from

the date of commencement of commercial production, whichever is later.

Vide circular No.960/03/2012-CX dt. 17.02.2012, CBE&C has clarified that

as the exemption is extended to a unit, any change in the ownership would not

jeopardize the admissibility of exemption for the remaining part of the ten

year exemption period subject to the condition that a new owner exercises his

option in writing to avail the benefit of the notification before effecting the

first clearance.

It is further clarified that when a unit availing the exemption physically shifts

to new location within the areas specified in the exemption notification, the

exemption should be available for the residual period of exemption.

164

The Exemption does not apply to such goods which have been subjected to

only one or more of the following processes, namely.1

i) Preservation during storage.

ii) Cleaning operations.

iii) Packing and repacking of such goods in a unit container or

iv) Labeling or relabeling of containers,

v) Sorting,

vi) Declaration or alteration of retail price

vii) Have not been subjected to any other process or processes amounting

to manufacture in the States of Uttarakhand and Himachal Pradesh.

Notification Nos. 49/2003-CE and 50/2003-CE contain a list of goods not

eligible for the exemption. This includes the Tobacco and tobacco products

including cigarettes and pan masala, thermal power plant, floor mill or rice

mill , coal washeries, foundries using coal, mineral fuels, mineral oils and

products of their distillations, bituminous substances, mineral waxes,

Synthetic rubber products, cement clinkers, Explosives, mineral and chemical

fertilizers, Insecticides, fungicides, herbicides and pesticides, Fiber Glass and

articles thereof, pulp and paper, Branded aerated water or non fruit based soft

drinks, Plastics and articles thereof etc.

Observations:-

From the data collected, it was observed that the said benefit has been availed

successfully by many manufacturing units. The details of the same are given

as case studies in the Chapter – Data Analysis.

165

3.16.3 Export Oriented Units. (EOU)

Export Oriented Undertaking (EOU) schemes are under control of Ministry of

Commerce. Chapter 6 of Foreign Trade Policy contains basic policy of EOU

and Chapter 6 of Handbook of Procedures – Volume I contains procedural

aspects.

Customs Manual, issued by CBE& C contains basic provisions related to

EOU.

EOU can import inputs and capital goods without payment of customs duty.

EOU can procure indigenous inputs and capital goods without payment of

excise duty. EOU have to export their final product. However they are

allowed to sell part of their final product within India. Sale in India is called as

sale in Domestic Tariff Area (DTA). Every EOU has to achieve positive net

foreign Exchange Earning (NFE).

Tax provisions relating to EOU

The provisions related to EOU are scattered in Foreign Trade Policy, Central

Excise Act, Customs Act, Income Tax Act and various other Acts and

Notifications. All these statutes have to be read as a whole and not in isolation

since they are series of statutes relating to same subject matter.

EOU units have to import inputs and capital goods and also have to export

their final product. Therefore Customs Law is very closely involved in

implementation and execution of EOU. Exemption Notifications are issued u/s

25(1) of the Customs Act.

166

Following are the important exemptions and clarifications related to EOU.

Exemption from Customs Duty- Noti. No. 52/2203-Cus Dt.31.03.2003

Exemption from Anti Dumping Duty Noti. No.5/94-Cus dt.18.01.1994.

Exemption to goods supplied to EOU/STP/EHTP- Noti. No.22/2003-CE

dt.31.03.2003.

Warehousing under EOU/EHTP/STP/BTP schemes. - Circular

No.851/9/2007-CX dt 03.05.2007 by CBE&C.

Exemption to Goods exported by EOU – Noti. No. 24/2003-CE

dt.31.03.2003.

Excise provisions and benefits available to EOU

EOU can procure inputs and capital goods from Indian manufacturer

without payment of Central Excise Duty.

EOU can sell their final product in India at the rate applicable to

imports of such goods. Part of their product, within the prescribed

limit, can be sold in India at a concessional rate of duty.

EOU have to follow Central Excise Procedures and file monthly

Return ER 2.

Supplies by Indian manufacturers to EOU are treated as deemed

exports and the supplier is entitled to get benefits of deemed exports.

Supplier to EOU can clear their final product to EOU without payment

of Excise Duty.

Supplier of EOU can avail Cenvat credit on inputs, input services and

capital goods. He can utilize the Cenvat credit for payment of duty on

other final products.

167

EOU can avail Cenvat credit on inputs, input services and capital

goods.

EOU can claim Refund of Cenvat credit of excise duty paid on inputs

and service tax paid on input services under Rule 5 of the Cenvat

Credit Rules, 2005.

EOU can export without payment of duty only. They cannot export

under Rebate Claim.

EOU can supply goods under Advance Authorization.

Supply to another EOU is not treated as DTA Sale.

EOU are entitled to reimbursement of duty paid on Fuel procured from

domestic oil companies as per the drawback rate.

The buyer from EOU can avail Cenvat credit of duty paid by EOU on

domestic clearances, as per the formula.

Sale of surplus electricity generated by EOU will not be counted

against domestic sale entitlement.

Basic provisions of scheme of Export Oriented Units (EOU), Export

Hardware Technology Park (EHTP), Software Technology Park (STP)

and Bio-Technology Park (BTP) are identical, with some variations.

3.16.4 Job Work under Central Excise

Job Work means supplying the material by a customer to a job worker who

carries out certain processes and returns the material to customer after

carrying out the processes.

In engineering industry, it is called as job work or sub contracting. In

Chemical and Textile Industry, it is called as processing and in Pharma and

Drug industry, it is a Loan License Scheme.

168

As per Rule 2(n) of the Cenvat Credit Rules,2004- Job work means processing

or working upon of raw material or semi finished goods supplied to 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. Same definition is given in the Explanation I to Noti.

No. 214/86-CE dt.25.03.1986.

Rule 4(5) (a) of the Cenvat Credit Rules, 2004 also provides that intermediate

product can be manufactured by a job worker. Material received by a

manufacturer under Cenvat can be sent to job worker for processing and can

be brought back by the manufacturer for further processing under Cenvat

Credit Rule 4(5)(a). In such case there is no duty liability on the job worker

and he is exempted from the same.

The supplier of manufacturer undertakes payment of duty on final products.

Hence, goods manufactured under Cenvat Provisions are nor exempted goods

and therefore proportionate reversal of Cenvat credit on inputs and input

service used in job work is not required to be reversed under Rule 6(3) of the

Cenvat Credit Rules,2004.

Salient features of Job work under Central Excise.

Job worker can use of own material or incidental material in the job

work.

Job work is permissible even if identity of inputs get lost in the

process.

Duty liability is of a job worker as he is a manufacturer. As per Rule

10A of the Central Excise Valuation Rules, duty is payable on the

basis of price at which raw material supplier sells the final product in

169

the market. However, if supplier of raw material is not selling the

product but consuming himself , duty can be paid on the basis of

material cost plus job charges , as held by Hon. Supreme Court in the

case of Ujagar Prints Vs UOI – 1989(38)ELT535 (SC 5 Member

Bench).

If no duty is payable on final product, exemption under Noti.

No.214/86-CE and exemption to job worker is not available. In such

cases, duty liability is on the job worker and not on the raw material

supplier. Where the final product is dutiable, the liability to pay excise

duty is on the supplier of raw material.

Direct dispatch from the place of job worker is possible with

permission of the jurisdictional Assistant / Dy. Commissioner of

Central Excise.

Job worker can take Cenvat credit on the basis of invoice but job

worker cannot avail Cenvat credit if raw material supplier has already

availed the same.

Relevant Rules and Notifications

Rule 4(5)(a) of the Cenvat Credit Rules,2004.

Rule 4(6) of the Cenvat Credit Rules, 2004, if goods are to be cleared

from job workers premises.

Noti. No.214/86-CE dt.25.03.1986 - Exemption to job work when

excise duty is payable on final product.

Noti.No.83/94-CE dt. 11.04.1994 and Noti. No.84/94-CE

dt.11.04.1994 – Exemption to Job work if material sent by exempted

SSI units.

170

3.16.5 Captive Consumption.

Excise Duty is on manufacture of goods. Therefore, duty is payable as soon as

goods are manufactured within the factory even as an intermediate products, if

they are marketable at that stage. If intermediate product is used in continuous

process, duty is not payable. Use of goods within the factory in called as

captive consumption. Duty is payable on captive consumption also. Duty is

payable when intermediate goods or partly processed goods are transferred to

other factory of the same manufacturer also.

Considering the inconvenience to manufacturer, if duty has to be paid on

intermediate products also, exemption has been granted under Noti. No.

67/95-CE dt. 16.03.1995. As per the said notification , if the intermediate

product manufactured within the factory and consumed captively for

following purpose is exempt from duty :-

a) For manufacture of capital goods as defined in Cenvat Credit Rules i.e.

capital goods eligible for Cenvat credit.

b) Used for in or in relation to manufacture of final products eligible for

Cenvat, made from inputs which are eligible for Cenvat.

In following cases, excise duty is payable on intermediate products.

a) If final product is exempt from excise duty, excise duty is payable on

intermediate products.

b) When goods are transferred from one factory to another factory of the

same manufacturer for further manufacturer.

171

Valuation in case of captive consumption

As per Rule 8 of the Central Excise Valuation Rules, 2000, in case of captive

consumption, value for the purpose of excise duty shall be one hundred and

ten percent of the cost of production or manufacture of such goods.

CBE&C, vide circular No. 643/34/2002-CX dt. 01.07.2002 has clarified that if

same goods are partly sold by the assessee and partly consumed captively,

goods sold have to be assessed on the basis of transaction value and goods

captively consumed should be assessed on basis of rule 8.

The rule 8 has been amended vide Notification No. 14/2013-CE(NT) to

provide that “ where whole or part of the excisable goods are not sold by the

assessee but are consumed by him or on his behalf in the production or

manufacture of other articles, the value of such goods that are consumed shall

be one hundred and ten percent of the cost of production or manufacture of

such goods.”.

The Institute of Cost Accountants of India has issued Cost Accounting

Standard 4 – CAS4 titled “Cost of Production for Captive Consumption”,

which deals with determination of cost of production for captive

consumption. As per CAS4, Cost of Production shall consist of cost of

material consumed, direct wages and salaries, direct expenses, works

overheads, quality control cost, research and development cost, packing cost,

administrative overheads relating to production. Necessary adjustments

CBE&C vide circular No.692/8/2003 dt. 13.02.2003 has clarified that in case

of captive consumption, cost calculations should be as per CAS4 only.

172

Captive Consumption – Relevant Notifications

Exemption to all capital goods and specified inputs if captively consumed

within the factory of production of excisable goods. –Noti.No.67/95-CE

dt.16.03.1995.

Exemption to excisable goods used within the factory of production for

manufacture of final product subject to certain specified notifications. –

Noti.No.83/92-CE dt.16.09.1992.

3.16.6 Exemption in case of International Competitive Bidding.

Goods Supplied against International Competitive Bidding are exempted from

excise duty vide Noti. No.6/2006-CE dt.01.03.2006.

If goods are supplied against the international competitive bidding,

proportionate reversal of Cenvat credit is not required as per Cenvat Credit

Rules,2004.

Exemptions under Central Excise

The researcher has compiled details of various exemptions under Central

Excise, available to manufacturers.

The following table shows the details of various exemptions under Central

Excise, available to manufacturers.

173

Table 3.7 - General Exemptions under Central Excise Tariff

Sr.No

Particulars GENo

Notification No.

Remark

A Small Scale Exemption 1 8/2003CE dtd 1.3.2003

SSI Exemption to first clearance of specified goods upto the value of Rupees One Crore and fifty Lakh and full exemption to captive consumption for manufacturers having clearances not exceeding rupees four Crores in the preceding financial year and not availing Cenvat schemes.

B Job Work 2 83/94CE dtd11.4.1994

Exemption to goods specified in the SSI Exemption Notification No. 8/2003-C.E. and 9/2003-C.E., If manufactured on job work basis

3 84/94CE dtd11.4.1994

Exemption to goods specified in the SSI Exemption Notification No. 8/2003-C.E. and 9/2003-C.E., If cleared for Job Work

4 214/86CE dtd

25.3.1986

Exemption to specified items if manufactured in a factory as a job work and used in the manufacture of final products or cleared as such from the factory of supplier of raw

174

Sr.No

Particulars GENo

Notification No.

Remark

materials or semi-finished goods.

5 70/92CE dtd

17.6.1992

Exemption to goods manufactured in a factory as a job work and used by the specified undertakings in the manufacture of goods for supply of Ministry of Defence.

C Captive Consumption (Goods used within factory of production)

6 67/95CEdtd

16.3.1995

Exemption to all capital goods and specified inputs if captively consumed within the factory of production.

7 83/92CEdtd

16.9.1992

Exemption to all excisable goods used within the factory of production for manufacture of final product subject to the condition of certain specified notifications

8 10/96CEdtd

23.7.1996

Exemption to goods consumed within the factory of their production in the manufacture of specified goods.

D Cottage and Village Industry Products

9. 198/87CE dtd

23.7.1996

Exemption to genuine specified products of village industry, marketed by or with the assistance of K.V.I.C

175

Sr.No

Particulars GENo

Notification No.

Remark

10 88/88CEdtd

1.3.1988

Exemption to certain specified goods manufactured in rural areas by Co-operative/ K.V.I.C., etc.

E Repairing, Reconditioning and Re-Engineering

11 138/94CE dtd

10.11.1994

Exemption to specified goods meant for repairing, reconditioning and re-engineering.

F Exhibition and Trade Fairs

12 263/79CE dtd

22.9.1979

Exemption to goods sent abroad as exhibits for exhibition in International Trade Fair or for demonstration or carrying out tests or trials.

G Technical Educational and Research Institute

13 167/71CE dtd

11.9.1971

Exemption to goods procured in a technical, educational and research institute

14 10/97 CE dtd 1.3.1997

Exemption to certain goods supplied to specified research institute

15 13/99 CE dtd

28.2.1999

Exemption to goods designed and developed by public funded research institution, national laboratories and universities and manufactured by an Indian company.

176

Sr.No

Particulars GENo

Notification No.

Remark

H Goods Produced in Government Factories, Mines, Mints and Prisons and Defence production etc.

16 62/95CE dtd16.3.1995

Exemption to goods manufactured by Central Government factories.

17 63/95CE dtd16.3.1995

Exemption to goods manufactured by specified Units/ Institutions for use by Government Department or Defence Purpose.

18 64/95 CE dtd

16.3.1995

Exemption to goods supplied for defense and other specified purposes.

19 74/93CE dtd28.2.1993

Exemption to specified goods manufactured in a State Government factory and intended for use in any of its department.

I Gas and Oil Authorities/ Companies

20 29/2002CEdtd 13.5.2002

Effective rates of duty for goods cleared by 4 specified refineries in theNorth-East.

J Solar and other Natural Energy, Chulhas and Nuclear Fuel

21 62/91CE dtd25.7.1991

Exemption to improved chulhas (including smokeless chulhas) capable of burning wood, agro waste, cow dung, briquettes and coal.

22 130/94CE dtd

21.9.1994

Exemption to goods required for Nuclear Fuel Complex.

177

Sr.No

Particulars GENo

Notification No.

Remark

K Export Oriented Units, STP & EHTP

23 22/2003CE dtd

31.3.2003

Exemption to goods brought into EOU/STP/EHTP Units

24 23/2003CEDtd

31.3.2003

Exemption to DTA clearances of specified goods procured in EOU/ EHTP/STP

25 24/2003CE dtd

31.3.2003

Exemption to goods procured in EOU

L Goods Meant for use in Export Goods/ Services

26 147/89CE dtd

19.5.1989

Exemption to excisable capital goods, components etc. brought for use in the manufacture of jewellery for export.

27 34/2006CE dtd

14.6.2006

Exemption to good supplied to service provider under Served from India Scheme.

M Ship, Ship’s Stores and Ship Breaking

28 82/84CE dtd

31.3.1984

Exemption to capital goods, components and raw materialscleared for repair of goods falling under Heading 89.01, 89.02, 89.04, 89.05 (excluding floating or submersible drilling or production platforms) and 89.06

N Set-Off of Duty 29 221/86CE dtd

31.3.1984

Sett- off of duty on specified goods of Chapters 33,39,68,69 and 91 if manufactured from specified duty paid inputs

178

Sr.No

Particulars GENo

Notification No.

Remark

O Goods for specific use or purpose

30 65/95CE dtd16.3.1995

Exemption to goods manufactured in factories workshop and used for maintenance of the machinery installed in the factory.

31 108/95CE dtd

28.8.1995

Exemption to goods supplied to UN or specified International Organization.

32 3/2004 CE dtd 8.1.2004

Exemption to machinery, instrument, equipments and pipes used in water supply plants for agriculture and industrial use.

33 15/2010CE dtd

27.2.2010

Exemption to all items of machinery etc. for initial setting up of solar power generation project or facility.

34 33/2005CE dtd

8.9.2005

Exemption to machinery/ components for initial setting up of power generation project using non-conventional material.

P Goods produced in specific areas like North-East, J&K, Uttarakhand, Himachal Pradesh, Sikkim and Kutch (Gujarat)

35 32/99CE dtd

8.7.1999

Exemption to North-East States from excise duty and additional excise duty to goods cleared from a unit located in Growth Centre or Integrated

179

Sr.No

Particulars GENo

Notification No.

Remark

Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estates or Industrial Area or Commercial Estates or Scheme Area.

36 33/99CE dtd

8.7.1999

Exemption to specified goods of factories in North-East (Assam, Tripura, Meghalaya, Mizoram, Manipur, Nagaland, or Arunachal Pradesh)

37 Omitted38 39/2001CE

dtd31.7.2001

Exemption to all goods (except those specified in Annexure) cleared from units in Kutch (Gujarat)

39 56/2005CE dtd

4.11.2002

Exemption to all goods (except cigarettes, cigars, tobacco and its products and soft drinks and their concentrates) produced in Jammu & Kashmir by units located in Industrial Growth Centre, Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or

180

Sr.No

Particulars GENo

Notification No.

Remark

Commercial Estate Scheme Area

40 57/2002CE dtd

14.11.2002

Exemption to specified goods produced by units in Jammu and Kashmir.

40A 1/2010 CE dtd 6.2.2010

Exemption to all goods except Cigarettes, Cigars, tobacco products and soft drinks or their concentrates cleared from new units (established / Expended after 6-2-2010) in J&k

41 49/2003 CE dtd

10.6.2003

Exemption to specific goods cleared from new units in Uttarakhand and Himachal Pradesh

42 50/2003CEdtd

10.6.2003

Exemption to goods other than specified goods cleared from units located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Estate or Industrial Area or Commercial Estate or Scheme Area of Uttarakhand and Himachal Pradesh.

43 56/2003 CE dtd

25-6-2003

Exemption to specified goods cleared from new units in Sikkim

181

Sr.No

Particulars GENo

Notification No.

Remark

44 71/2003 CE dtd

9-9-2003

Exemption to all goods (except tobacco, tobacco products; specified plastic carry bags; mineral oils; Branded aerated beverages; or pollution causing paper and paper products) cleared from specified areas of Sikkim by unit in Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, from excise duty other than duty paid on account of Cenvat credit.

45 20/2007CE dtd

25-4-2007

Exemption to North East including Sikkim on all goods (except as specified) cleared from Assam, Tripura, Meghalaya,Mizoram, Manipur,Nagaland, Arunachal Pradesh or Sikkim from duty paid other than by utilization of Cenvat credit

182

Sr.No

Particulars GENo

Notification No.

Remark

Q Effective Rates of Duty for Goods of various chapters

46 1/2011 CE dtd

1.3.2011

Effective rate of duty of 2% for specified goods when no Cenvat credit on inputs or input services availed

47 2/2011 CE dtd

1.3.2011

Effective rate of duty of 6% for specified goods

48 27/2011CE dtd

24.3.2011

Exemption to waste, parings and scrap arising during manufacture of goods having effective rate of 1% duty under Noti. No.1/2011-C.E and 20/2011-C.E.

49 Omitted50 12/2012CE

dtd17.3.2012

Effective rates of duty for specified goods of chapter 1 to 98

51 OmittedR Export promotion

schemes & Exemptions51A 29/2012CE

dtd9.7.2012

Exemption to all excisable goods when procured against a Focus scheme (FPS) duty credit scrip

51B 30/2012CE dtd

9.7.2012

Exemption to all excisable capital goods from Excise duty when procured against a Focus Market Scheme (FMS) duty credit scrip.

51C 31/2012CE dtd

9.7.2012

Exemption to specified excisable capital goods from Excise Duty when

183

Sr.No

Particulars GENo

Notification No.

Remark

procured from domestic manufacturer against Agri. Infrastructure Incentive Scrip duty credit scrip

51D 32/2012CE dtd

9.7.2012

Exemption to all excisable goods when procured a VKGUY (Special Agriculture and Village Industry Scheme) duty credit scrip

51E 33/2012CE dtd

9.7.2012

Exemption to excisable capital goods when procured against a Status Holder Incentive Scheme duty credit scrip

51F 2/2013CE dtd

18.2.2013

Exemption to all excisable goods from excise duty, additional duties and special duty when cleared against post export EPCG duty credit scrip (0% EPCG variant)

51FF 3/2013CEdtd

18.2.2013

Exemption to all excisable goods from excise duty, additional duties and special duty when cleared against Post Export EPCG duty

184

Sr.No

Particulars GENo

Notification No.

Remark

credit scrip (3% EPCG variant)

51G 14/2013CE dtd

18.4.2013

Exemption to goods cleared against a Post Export EPCG duty credit scrip from Excise duty & additional duty

S Miscellaneous Exemptions

52 17/2011CE dtd

1.3.2011

Exemption to Handicraft, Scented Chunnam, Vibuthi, Contraceptive, Enamelware, Pyrites (agricultural), Coke-oven gas and blast furnace gas, Sludge, Animal drawn vehicles and their wheels and axles, Erasers and Spent fuller’s earth.

53 89/95CEdtd

18.5.1995

Exemption to waste, pairings and scrap arising during manufacture of exempted goods

54 15/2010CE dtd

27.2.2010

Exemption to all items of machinery etc. for initial setting up of solar power generation project or facility.

55 33/2010CEdtd

19.10.2010

Exemption to Petrol and HSD, from specified Additional duties and Spl. Additional Excise duty when supplied to UN or an international organization for its

185

Sr.No

Particulars GENo

Notification No.

Remark

official use.56 19/2012CE

dtd23.5.2013

Exemption to goods supplied to Duty Free Shops at International Customs Airport.

186

3.17 Exemptions under Service Tax:-

Central government can grant partial or total exemption in public interest, by

issuing an ‘exemption notification’ under section 93 of Finance Act, 1994.

Such exemption may be partial or total. Exemption may be conditional or

unconditional. Exemption cannot be granted by Central Government with

retrospective effect.

a) Mega Exemption Notification.

Central Government has issued Mega Exemption Notification No. 25/2012-

ST dtd 20.06.2012, giving exemption to following services from service tax:-

1. Services provided to the United Nations or a specified international

organization;

2. Health care services by a clinical establishment, an authorized medical

practitioner or para-medics;

3. Services by a veterinary clinic in relation to health care of animals or

birds;

4. Services by an entity registered under section 12AA of the Income tax

Act, 1961 (43 of 1961) by way of charitable activities;

187

For this purpose, “charitable activities” means activities relating to -

i. public health by way of -

a. care or counseling of (i) terminally ill persons or

persons with severe physical or mental disability, (ii)

persons afflicted with HIV or AIDS, or (iii) persons

addicted to a dependence-forming substance such as

narcotics drugs or alcohol; or

b. public awareness of preventive health, family planning

or prevention of HIV infection;

ii. advancement of religion or spirituality;

iii. advancement of educational programmes or skill development

relating to,-

a. abandoned, orphaned or homeless children;

b. physically or mentally abused and traumatized persons;

c. prisoners; or

d. persons over the age of 65 years residing in a rural area;

iv. preservation of environment including watershed, forests and

wildlife;

5. Services by a person by way of-

a) renting of precincts of a religious place meant for general public;

or

b) conduct of any religious ceremony;

“Religious place” means a place which is primarily meant for

conduct of prayers or worship pertaining to a religion,

meditation, or spirituality

188

6. Services provided by-

a. an arbitral tribunal to -

i) any person other than a business entity; or

ii) a business entity with a turnover up to rupees ten lakh in the

preceding financial year;

b. an individual as an advocate or a partnership firm of advocates by

way of legal services to,-

i) an advocate or partnership firm of advocates providing legal

services ;

ii) any person other than a business entity; or

iii) a business entity with a turnover up to rupees ten lakh in the

preceding financial year; or

c. a person represented on an arbitral tribunal to an arbitral tribunal;

7. Services by way of technical testing or analysis of newly developed

drugs, including vaccines and herbal remedies, on human participants

by a clinical research organization approved to conduct clinical trials

by the Drug Controller General of India;

8. Services by way of training or coaching in recreational activities

relating to arts, culture or sports;

9. Services provided to an educational institution in respect of education

exempted from service tax, by way of,-

a. auxiliary educational services; or

b. renting of immovable property;

189

“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;

(Till 01.04.2013, services provided by educational institute were also

exempted.)

10. Services provided to a recognized sports body by-

a) an individual as a player, referee, umpire, coach or team manager

for participation in a sporting event organized by a recognized

sports body;

b) another recognized sports body;

“recognized sports body” means - (i) the Indian Olympic Association,

(ii) Sports Authority of India, (iii) a national sports federation

recognized by the Ministry of Sports and Youth Affairs of the Central

Government, and its affiliate federations, (iv) national sports

promotion organizations recognized by the Ministry of Sports and

Youth Affairs of the Central Government, (v) the International

Olympic Association or a federation recognized by the International

Olympic Association or (vi) a federation or a body which regulates a

190

sport at international level and its affiliated federations or bodies

regulating a sport in India;

11. Services by way of sponsorship of sporting events organized,-

a) by a national sports federation, or its affiliated federations, where

the participating teams or individuals represent any district, state or

zone;

b) by Association of Indian Universities, Inter-University Sports

Board, School Games Federation of India, All India Sports Council

for the Deaf, Paralympics Committee of India or Special Olympics

Bharat;

c) by Central Civil Services Cultural and Sports Board;

d) as part of national games, by Indian Olympic Association; or

e) under Panchayat Yuva Kreeda Aur Khel Abhiyaan (PYKKA)

Scheme;

12. 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 –

a) a civil structure or any other original works meant predominantly

for use other than for commerce, industry, or any other business or

profession;

b) a historical monument, archaeological site or remains of national

importance, archaeological excavation, or antiquity specified

under the Ancient Monuments and Archaeological Sites and

Remains Act, 1958 (24 of 1958);

191

c) a structure meant predominantly for use as (i) an educational, (ii) a

clinical, or (iii) an art or cultural establishment;

d) canal, dam or other irrigation works;

e) pipeline, conduit or plant for (i) water supply (ii) water treatment,

or (iii) sewerage treatment or disposal; or

f) 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;

13. Services provided by way of construction, erection, commissioning,

installation, completion, fitting out, repair, maintenance, renovation,

or alteration of,-

(a) a road, bridge, tunnel, or terminal for road transportation for use by

general public;

(b) a civil structure or any other original works pertaining to a scheme

under Jawaharlal Nehru National Urban Renewal Mission or Rajiv

Awaas Yojana;

(c) a building owned by an entity registered under section 12 AA of

the Income tax Act, 1961(43 of 1961) and meant predominantly

for religious use by general public;

(d) a pollution control or effluent treatment plant, except located as a

part of a factory; or a structure meant for funeral, burial or

cremation of deceased;

14. Services by way of construction, erection, commissioning, or

installation of original works pertaining to,-

(a) an airport, port or railways, including monorail or metro;

192

(b) a single residential unit otherwise than as a part of a residential

complex;

(c) low- cost houses up to a carpet area of 60 square metres per house

in a housing project approved by competent authority empowered

under the ‘Scheme of Affordable Housing in Partnership’ framed

by the Ministry of Housing and Urban Poverty Alleviation,

Government of India;

(d) post- harvest storage infrastructure for agricultural produce

including a cold storages for such purposes; or

(e) mechanized food grain handling system, machinery or equipment

for units processing agricultural produce as food stuff excluding

alcoholic beverages;

15. Services provided by way of temporary transfer or permitting the use

or enjoyment of a copyright

(a)covered under clause (a)of sub-section (1) of section 13 of the

Indian Copyright Act, 1957 (14 of 1957), relating to

original literary, dramatic, musical, artistic works or

(b) of cinematograph films for exhibition in a cinema hall or

cinema theatre;

16. Services by a performing artist in folk or classical art forms of (i)

music, or (ii) dance, or (iii) theatre, excluding services provided by

such artist as a brand ambassador;

17. Services by way of collecting or providing news by an independent

journalist, Press Trust of India or United News of India;

193

18. Services by way of renting of a hotel, inn, guest house, club, campsite

or other commercial places meant for residential or lodging purposes,

having declared tariff of a unit of accommodation below rupees one

thousand per day or equivalent;

19. Services provided in relation to serving of food or beverages by a

restaurant, eating joint or a mess, other than those having (i) the

facility of air-conditioning or central air-heating in any part of the

establishment, at any time during the year, and (ii) a license to serve

alcoholic beverages;

19A. Services provided in relation to serving of food or beverages by a

canteen maintained in a factory covered under the Factories Act, 1948

(63 of 1948), having the facility of air-conditioning or central air-

heating at any time during the year. (Inserted by Notification

No.14/2013 ST, dtd 22.10.2013)

20. Services by way of transportation by rail or a vessel from one place in

India to another of the following goods –

a) relief materials meant for victims of natural or man-made

disasters, calamities, accidents or mishap;

b) defence or military equipments;

c) newspaper or magazines registered with the Registrar of

Newspapers;

d) railway equipments or materials;

e) agricultural produce;

f) foodstuff including flours, tea, coffee, jaggery, sugar, milk

products, salt and edible oil, excluding alcoholic beverages; or

g) chemical fertilizer and oilcakes;

194

21. Services provided by a goods transport agency by way of transport in

goods carriage of –

a) Agricultural produce;

b) Goods, where gross amount charged for transportation of goods

on a consignment transported in a single carriage does not exceed

one thousand five hundred rupees;

c) Goods, where gross amount charged for transportation of all such

goods for a single consignee in the goods carriage does not

exceed rupees seven hundred fifty;

d) foodstuff including flours, tea, coffee, jaggery, sugar, milk

products, salt and edible oil, excluding alcoholic beverages;

e) chemical fertilizer and oilcakes;

f) newspaper or magazines registered with the Registrar of

Newspapers;

g) relief materials meant for victims of natural or man-made

disasters, calamities, accidents or mishap; or

h) defence or military equipments;

22. Services by way of giving on hire –

a) to a state transport undertaking, a motor vehicle meant to carry

more than twelve passengers; or

b) to a goods transport agency, a means of transportation of goods;

23. Transport of passengers, with or without accompanied belongings, by

a) air, embarking from or terminating in an airport located in the

state of Arunachal Pradesh, Assam, Manipur, Meghalaya,

Mizoram, Nagaland, Sikkim, or Tripura or at Bagdogra located in

West Bengal;

195

b) a contract carriage for the transportation of passengers, excluding

tourism, conducted tour, charter or hire; or

c) ropeway, cable car or aerial tramway;

24. Services by way of vehicle parking to general public excluding

leasing of space to an entity for providing such parking facility;

(omitted with effect from 01.04.2013.)

25. Services provided to Government, a local authority or a governmental

authority by way of –

a) carrying out any activity in relation to any function ordinarily

entrusted to a municipality in relation to water supply, public

health, sanitation conservancy, solid waste management or slum

improvement and up gradation; or

b) repair or maintenance of a vessel or an aircraft;

26. Services of general insurance business provided under following

schemes –

a) Hut Insurance Scheme;

b) Cattle Insurance under Swarnajaynti Gram Swarozgar Yojana

(earlier known as Integrated Rural Development Programme);

c) Scheme for Insurance of Tribal’s;

d) Janata Personal Accident Policy and Gramin Accident Policy;

e) Group Personal Accident Policy for Self-Employed Women;

f) Agricultural Pumpset and Failed Well Insurance;

g) premia collected on export credit insurance;

h) Weather Based Crop Insurance Scheme or the Modified National

Agricultural Insurance Scheme, approved by the Government of

India and implemented by the Ministry of Agriculture;

196

i) Jan Arogya Bima Policy;

j) National Agricultural Insurance Scheme (Rashtriya Krishi Bima

Yojana);

k) Pilot Scheme on Seed Crop Insurance;

l) Central Sector Scheme on Cattle Insurance;

m) Universal Health Insurance Scheme;

n) Rashtriya Swasthya Bima Yojana; or

o) Coconut Palm Insurance Scheme;

26A. Services of life insurance business provided under following

schemes-

(a) Janashree Bima Yojana (JBY) or

(b) Aam Aadmi Bima Yojana (AABY)

(Inserted by Notification No.49/2012 ST dtd 24.12.2012)

27. Services provided by an incubatee up to a total turnover of fifty lakh

rupees in a financial year subject to the following conditions,

namely:-

a) the total turnover had not exceeded fifty lakh rupees during the

preceding financial year; and

b) a period of three years has not been elapsed from the date of

entering into an agreement as an incubatee;

28. Service by an unincorporated body or a non- profit entity registered

under any law for the time being in force, to its own members by way

of reimbursement of charges or share of contribution –

a) as a trade union;

b) for the provision of carrying out any activity which is exempt

from the levy of service tax; or

197

c) up to an amount of five thousand rupees per month per member

for sourcing of goods or services from a third person for the

common use of its members in a housing society or a residential

complex;

29. Services by the following persons in respective capacities –

a) sub-broker or an authorised person to a stock broker;

b) authorised person to a member of a commodity exchange;

c) mutual fund agent to a mutual fund or asset management

company;

d) distributor to a mutual fund or asset management company;

e) selling or marketing agent of lottery tickets to a distributer or a

selling agent;

f) selling agent or a distributer of SIM cards or recharge coupon

vouchers;

g) business facilitator or a business correspondent to a banking

company or an insurance company, in a rural area; or

h) sub-contractor providing services by way of works contract to

another contractor providing works contract services which are

exempt;

30. Carrying out an intermediate production process as job work in

relation to –

a) agriculture, printing or textile processing;

b) cut and polished diamonds and gemstones; or plain and studded

jewellery of gold and other precious metals, falling under Chapter

71 of the Central Excise Tariff Act ,1985 (5 of 1986);

c) any goods on which appropriate duty is payable by the principal

manufacturer; or

198

d) processes of electroplating, zinc plating, anodizing, heat

treatment, powder coating, painting including spray painting or

auto black, during the course of manufacture of parts of cycles or

sewing machines upto an aggregate value of taxable service of the

specified processes of one hundred and fifty lakh rupees in a

financial year subject to the condition that such aggregate value

had not exceeded one hundred and fifty lakh rupees during the

preceding financial year;

31. Services by an organizer to any person in respect of a business

exhibition held outside India;

32. Services by way of making telephone calls from –

a) departmentally run public telephone;

b) guaranteed public telephone operating only for local calls; or

c) free telephone at airport and hospital where no bills are being

issued;

33. Services by way of slaughtering of animals;

34. Services received from a provider of service located in a non- taxable

territory by

a) Government, a local authority, a governmental authority or an

individual in relation to any purpose other than commerce,

industry or any other business or profession;

b) an entity registered under section 12AA of the Income tax Act,

1961 (43 of 1961) for the purposes of providing charitable

activities; or

c) a person located in a non-taxable territory;

199

35. Services of public libraries by way of lending of books, publications or

any other knowledge- enhancing content or material;

36. Services by Employees’ State Insurance Corporation to persons

governed under the Employees’ Insurance Act, 1948 (34 of 1948);

37. Services by way of transfer of a going concern, as a whole or an

independent part thereof;

38. Services by way of public conveniences such as provision of facilities

of bathroom, washrooms, lavatories, urinal or toilets;

39. Services by a governmental authority by way of any activity in

relation to any function entrusted to a municipality under article

243W of the Constitution.

Article 243W of the Constitution is reproduced below for the ready

reference.

‘Subject to the provisions of this Constitution, the Legislature of a State

may, by law, endow—

(a) the Municipalities with such powers and authority as may be

necessary to enable them to function as institutions of self-government

and such law may contain provisions for the devolution of powers and

responsibilities upon Municipalities, subject to such conditions as may

be specified therein, with respect to—

i. the preparation of plans for economic development and social

justice;

200

ii. the performance of functions and the implementation of schemes

as may be entrusted to them including those in relation to the

matters listed in the Twelfth Schedule;

(b) the Committees with such powers and authority as may be necessary

to enable them to carry out the responsibilities conferred upon them

including those in relation to the matters listed in the Twelfth

Schedule.’

Matters listed in twelfth schedule are:

1. Urban planning including town planning.

2. Regulation of land-use and construction of buildings.

3. Planning for economic and social development.

4. Roads and bridges.

5. Water supply for domestic, industrial and commercial purposes.

6. Public health, sanitation conservancy and solid waste management.

7. Fire services.

8. Urban forestry, protection of the environment and promotion of

ecological aspects.

9. Safeguarding the interests of weaker sections of society, including the

handicapped and mentally retarded.

10. Slum improvement and upgradation.

11. Urban poverty alleviation.

12. Provision of urban amenities and facilities such as parks, gardens,

playgrounds.

13. Promotion of cultural, educational and aesthetic aspects.

14. Burials and burial grounds; cremations, cremation grounds; and

electric crematoriums.

15. Cattle pounds; prevention of cruelty to animals.

16. Vital statistics including registration of births and deaths.

201

17. Public amenities including street lighting, parking lots, bus stops and

public conveniences.

18. Regulation of slaughter houses and tanneries.

b) Other Exemption under Service Tax. :-

Other Exemptions not covered in Notification No. 25/2012-ST are as per

following.

Small Scale Exemption to service providers having total clearance

upto 10 Lacs. (Noti. No.33/2012-ST)

Services Provided to SEZ/Export. (Notification No. 12/2013-ST dtd

01.07.2013

R&D Cess (Noti.No.17/2004-ST , 14/2012-ST)

Services to Foreign Diplomatic Mission (Noti.No.27/2012-ST).

Services Provided by Technology Business Incubator (TBI) (Noti.

No.32/2012-ST)

Services provided by Science Technology Entrepreneurship Park

(STEP) (Noti. No.32/2012-ST)

Property Tax in case of “Renting of Immovable Property” (Noti.

No.29/2012-ST).

202

3.18 Central Excise provisions applicable to Service tax.

The researcher observed that many of the Central Excise Provisions are made

applicable to Service Tax. The following table shows summery of the same.

Table 3.8 - Central Excise provisions applicable to Service tax.

Excise Sections No.

Contents of the Section Parallel Customs Sections

Section 9A(2) Compounding of Offences Section 137(3)Section 9AA Offences by companies Section 140Section 9B Powers of Court to publish name, place of

business etc. of the persons convicted under the Act

Section 135B

Section 9C Presumption of Means rea in offences 138ASection 9D Relevancy of statements made before

excise officers138B

Section 9E Application of Section 562 and the Code of Criminal Procedure and Probation of

Offenders Act

Section 140A

Section 11B Claim of refund of duty, including those in respect of unjust enrichment

27

Section 11BB Interest on delayed refund 27ASection 11C Power to Central Govt. not recover duty as

a result of general practice28A

Section 12 Central Government can make certain provisions of Customs Act applicable to

Service Tax

N.A.

Section 12A Invoice to indicate amount of duty paid thereon

28C

Section 12B Presumption that burden of duty has been passed on to buyer

28D

Section 12C Consumer Welfare Fund 2(21A) adopting

definition in CESection 12D Utilization of Consumer Welfare Fund N.A.Section 12E Powers of Central Excise Officer can be

exercised by any person senior to him, but not by Commissioner (Appeals)

5

203

Excise Sections No.

Contents of the Section Parallel Customs Sections

Section 14 Power to summons to give evidence and produce documents

108

Section 15 Officers required to assist Central Excise Officer

151

Section 32,32A to 32P

Settlement of Case by Settlement Commission (inserted w.e.f. 28-05-2012)

Sections 127A to 127N

Section 33A Adjudication procedure 122ASection 34A Confiscation or penalty not to interfere

with other punishments127

Section 35EE Revision by Central Govt. of order passed by Commissioner (Appeals) [Inserted

w.e.f. 28th May, 2012]

129DD

Section 35F Deposit pending appeal 129E

Section 35FF Interest on refund of pre-deposit if delayed beyond three months [section inserted vide

Finance Act 2008 w.e.f. 10-5-2008]

Section 129EE

Section 35G to 35K

Appeal to High Court on substantial question of law

130 to 130D

Section 35L and 35M

Appeal to Supreme Court 130E and 130F

Section 35N Sums due to be paid even in reference is made or appeal is filed

131

Section 35-O Exclusion of time for filing appeal, spent on getting copy

131A

Section 35Q Authorised Representative before Appellate Authority

146A

Section 35R Appeal not to be filed in certain cases 131BASection 36 Definition of High Court and President of

CESTAT131C

Section 36A Presumption of documents 139(i)Section 36B Admissibility of microfilms, FAX and

computer print outs138C

Section 37A Delegation of powers by Central Government to Board, Chief Commissioner , DC/AC etc.

152

Section 37B Instructions by Board to Central Excise Officers for uniformity in classification

and valuation151A

204

Excise Sections No.

Contents of the Section Parallel Customs Sections

Section 37C Mode of service of decisions, orders, summons

153

Section 37D Rounding off duty 154ASection 38A Protecting actions taken under rules and

notifications that existed prior to changes in rules and notifications (Inserted by Finance Act, 2007 w.e.f. 11-5-2007)

159A

Section 40 Protection to CE Officers of actions taken in good faith

155

205

3.19 Parallel Provisions in excise, customs and service tax.

It was observed that there are many similar / parallel provisions applicable to

Central Excise, Customs and Service Tax. Following is the summery of the

same.

Table 3.9-Parallel Provisions in Central Excise, Customs and Service Tax.

Topic Excise Customs Finance Act,1994 (Service Tax)

Entry in List I of Seventh

Schedule of Constitution

84 83 97

Administrative Control

CBE&C CBE&C CBE&C

Departmental Organizational

Same from top Same from top Same as Central Hierarchy upto AC

ExciseClassification CETA based on

HSNCustoms Tariff based on HSN

Section 66F introduced w.e.f. 1-

7-2012.Valuation based on transaction

value

Section No. 4 Section No. 14 Section No. 67

Related person concept for valuation

Yes Yes No provision, but concept of piercing corporate veil can

apply.Power to Central

Govt. to grant exemption

Section No. 5A Section No. 25 Section No. 93

Criminal Offences

Section No. 9 Section Nos. 132 to 135

Section No. 89

Court can order forfeiture of property to

Section No. 10 No provision No provision

206

Topic Excise Customs Finance Act,1994 (Service Tax)

GovernmentRecovery of duty

and taxSection No. 11 Section No. 142 Section No. 87

Demand of duty Section No. 11A

Section No. 28 Section No. 73

No penalty if duty/tax with

interest is paid before Show Cause Notice

Explanation 3 to section 11A(2B)

No Provision Explanation 2 to section 73(3)

Interest for delayed payment

of duty/tax

Section No. 11AB

Section No. 28AB

Section No. 75

Mandatory penalty in case of

suppression of facts, willful

misstatement etc.

Section No. 11AC

Section No. 114A

Section No. 78

Amount collected

representing as ‘duty’ from

buyer must be paid to Govt.

Section No. 11D

Section No. 28B

Section No. 73A

Interest on aforesaid amount

Section No. 11DD

No provision Section No. 73B

Provisional attachment of

property pending adjudication

Section No. 11DDA

Section No. 28BA

Section No. 73C

Audit by Chartered/Cost

Accountants

Sections 14A and 14AA

Audit of ware-housing records

Section No. 72A

Power to arrest Section No. 13 Section No. 104 No powerAdvance Ruling Section

Nos.23A to 23HSection Nos. 28E to 28L

Section Nos. 96A to 96-I

Adjudication of penalty

Section No. 33 Section No. 122 Section No. 83A

Redemption fine after confiscation

Section No. 34 Section Nos. 125, 126

No provisions of confiscation

207

Topic Excise Customs Finance Act,1994 (Service Tax)

Appeal to Commissioner

(Appeals)

Section No. 35 Section No. 128 Section No. 85

Procedure of Appeal to

Commissioner (Appeals)

Section No. 35A

Section No. 128A

Excise provisions Made applicable vide section No.

85(5)Departmental

appeal to Commissioner

(Appeals)

Section No. 35B(2)

Section No. 129A(2)

No provision

Order of Tribunal

Section No. 35C

Section No. 129B

Excise provisions Made applicable vide section No.

86(7)Departmental

AppealSection No. 35E Section No.

129DSection No. 86

Rule making power of Central

Government

Section No. 37 Section No. 156 Section No. 94

Publication of name relating to any proceedings

Section No. 37E Section No. 154B

Section No. 73D

Search and Seizure

Customs provisions

apply

Section Nos. 105 and 110

Section No. 82

Vexatious search by Officer

22 Section No. 136 No provision

Confiscation of conveyance,

goods

Customs provisions

apply

Section Nos. 115, 118 to 121

No powers

Self assessment Rule 6 Section No. 17(1)

Section No. 70(1)

Provisional Assessment

Rule 7 Section No. 18 Rule 6(4)

Penalties by departmental adjudicating authorities

Rules 25 to 27 Section Nos. 112, 114, 116,

117

Section Nos. 76, 77 and 78

208

The Researcher, consistent with the objectives, collected data from the various

manufacturing units and service provider units, compared with the various

provisions under Central Excise, Service Tax and worked the cost reduction

achieved by various units by availing benefits of various exemptions as a

measure of tax planning. The details are presented in the following chapter in

the case studies.

Review of literature of decisions, provisions, Committee Reports and Report

of the Comptroller and Auditor General of India on Indirect Taxes provided

vital facts, important decisions, arguments listed in this chapter provides the

framework for the present study.

On the basis of this Research Design of Study has been formulated.

209

References

1. Constitution of India.

2. R.K.Jain – Central Excise Law Manual, Centax Publication.

3. R.K.Jain – Central Excise Tariff by Centax Publication.

4. www/cbec.gov.in

5. R.K.Jain- Customs Law Manual, Centax Publication.

6. R.K.Jain- Customs Tariff, Centax Publication.

7. Taxmann’s Service Tax Manual by Taxmann Publications Pvt Ltd.

8. R.K.Jain’s Foreign Trade Policy & Handbook of Procedures –Centax

Publication.

9. Special Economic Zones Act, 2005.

10. Reports on India’s Tax Reforms published by economic India Info

Services, a division of Academic Foundation, New Delhi.

11. Report of CAG on Indirect Taxes for the Year ended March 2012.