RESTRICTIONS ON THRESHOLD EXEMPTION IN SERVICE TAX

[Dr. Sanjiv Agarwal]

Law prior to 1.7.2012

Exemption Scheme for Small Service Providers was covered by the following Notifications –

No. 06/2005-ST dated 01.03.2005                 Threshold limit Rs. 4 lakhs.

No. 04/2007-ST dated 01.03.2007                 Threshold limit Rs. 8 lakhs.

No. 08/2008-ST dated 01.03.2008                 Threshold limit Rs. 10 lakhs.

Law w.e.f. 1.7.2012

Exemption Scheme for Small Service Providers is governed by Notification No. 33/2012-ST dated 20.06.2012 and the exemption limit is Rs. 10 lakhs.

Amendments in Exemption 

Amendments w.e.f. 1.4.2007

The threshold exemption limit of Rs. 4 lakhs was raised to Rs. 8 lakhs w.e.f. 1.4.2007 vide Notification No. 04/2007-ST dated 1.3.2007 amending the exemption Notification No. 06/2007-ST dated 1.3.2007. Thus, w.e.f. 1.4.2007, the limit of Rs.4 lakhs was raised to Rs. 8 lakhs with all other conditions of Notification No. 06/2005-ST remaining unchanged.

Amendment made w.e.f. 1.4.2008

W.e.f. 1.4.2008, vide Notification No. 8/2008-ST dated 1.3.2008, threshold exemption limit for service tax exemption was increased from Rs.8 lakhs to Rs.10 lakhs. For financial year 2008-09, if service providers aggregate value of taxable services was not more than Rs.10 lakh in 2007-08, such assessees could opt for exemption scheme.

Amendment w.e.f. 1.4.2012

Vide Notification No. 5/2012- ST dated 17.3.2012, w.e.f. 1.4.2012, amendment was made in the meaning of aggregate value to the effect that first clearances up to Rs.10 lakhs would be constituted in terms of invoices raised or to be raised and not on the basis of payments received to determine the aggregate value.

Amendment w.e.f. 1.7.2012

Vide Notification No. 33/2012-ST dated 20-6-2012, Notification No. 06/2005-ST has been superceded. W.e.f. 1-7-2012, aggregate value means the sum total of value of taxable services charged in the first consecutive invoices issued during a financial year but does not include value charged in invoice issued towards such services which are exempt from whole of service tax leviable thereon under section 66B of the said Finance Act under any other notification.

Receiver cannot avail the benefit of exemption scheme

The exemption scheme is meant only for service providers. The exemption cannot be availed by service providers who are not liable to pay service tax on the services rendered by them. Similarly, service receivers who avail the services but are person liable to pay the tax under Section 68(2) as a special case are not the service providers. As such, service receivers cannot claim the benefit of exemption scheme. Thus, this scheme will not be of any benefit to either the service receiver or the service provider in such cases. These will include mutual fund distribution, services rendered from outside India, life insurance and general insurance auxiliary services etc.

The exemption scheme does not apply to person liable under section 68(2) of the Finance Act, 1994 or person other than service providers as specified under rule 2(1)(d) of Service Tax Rules, 1994. To avail the exemption, the person should be a service provider only. However, Cenvat credit can be taken as per rules subject to fulfilment of the specified conditions of being on input service.

The reverse charge mechanism has been expanded w.e.f. 1 July 2012. As such, the service recipients of services such as arbitral tribunal, legal services, support services provided by the Government, renting of vehicles, works contracts, manpower supply, security services, directors service etc covered under reverse charge as per Notification No. 30/2012-ST dated 20.6.2012 shall have to pay service tax and in such cases, benefit of exemption scheme will not be available to service receiver.

The service receiver is only liable to pay service tax and by doing so, he does not become service provider. The liability to pay service tax has only been shifted.

Franchise / Brands excluded

Explanation (A) to the notification defines brand name or trade name to mean a brand name or a trade name, whether registered or not, say, a name or a mark, such as symbol, monogram, logo, label, signature, or invented word or writing which is used in relation to such specified services for the purpose of indicating or so as to indicate a connection in the course of trade between such specified services and some persons using such name or mark with or without any indication of the identity of that person.

In CCE, Madurai v. Aquanet 2010 (11) TMI 438 - CESTAT, CHENNAI, penalty was waived invoking section 80 where assessee was under a bonafide belief on entitlement to small scale service provider exemption and was not aware of bar on use of others brand name.

Small service provider scheme does not apply to taxable services provided by a person under a brand name or trade name whether registered or not. Brand name may or may not be registered. In CCE v. Grasim Industries Ltd 2005 (4) TMI 64 - SUPREME COURT OF INDIA, it was held that even a name of the company can be a trade name if the context so permits. It can be said that a mere use of brand name of other person would not disentitle the exemption benefit. The brand must have nexus with service provided. The brand should have nexus with services, not the goods. Mere mention of brand name on invoice will not imply that such a note comprised in bill is a brand name usage for a service.

In Peoples Automobiles Ltd v. CCE, Kanpur 2011 (8) TMI 903 - CESTAT, NEW DELHI, it was held that Notification No. 6/2005- ST, dated 1-3-2005 does not put restriction with reference to use of brand name of service recipient, but same debars the benefit of exemption to small service provider on use of brand or trade name of another person. Therefore, exemption cannot be denied in case where services provided by direct sales agents to banks or other non- banking financial institution, under their own name and not by using the recipients i.e. the banks brand name.

In Shree Balaji Garments Ltd. v. CCE, Jaipur I 2011 (2) TMI 700 - CESTAT, NEW DELHI , where the assessee ( a franchise engaged in brand promotion) had misinterpreted eligibility for the exemption under the Notification No. 6/2005 ST, it was held that the benefit of notification, prima facie, was not available as brand name of another was used by the assessee.

No refund permissible

In Re : Cancio E.P. Mascarenhas 2009 (8) TMI 960 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), GOA, where refund was claimed by small assessee under exemption limit, it was held that there is no provision to change option once the exemption under Notification No. 6/2005-ST is availed or opted to pay service tax without exemption and refund was not admissible.

In S. Nagaraj v. CCE, Tiruchirapalli 2010 (10) TMI 374 - CESTAT, CHENNAI, it was held that Notification No. 6/2005-ST dated 1-3-2005 provided service provider of taxable service with an option not to avail the exemption contained in notification and pay the service tax on taxable services provided by him, but such option once exercised in a financial year could not be withdrawn during the remaining part of financial year. Therefore, the benefit of exemption was to be denied as assessee initially paid service tax for service provided and then claimed exemption in same financial year.