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30.8.2010        
RETURNS, ASSESSMENT AND REFUND
Applicable Provisions Following sections of Finance Act, 1994 are applicable –
Section 70 Furnishing of returns
Section 73 Recovery of service tax not levied or paid or short levied or short paid or erroneously refunded
Section 74 Rectification of mistake
Section 84 Revision of order by Commissioner
Applicable Rules Rule 7 of Service Tax Rules, 1994
Service Tax (Registration of Special Category of Persons) Rules, 2005
Relevant Notifications/ Circulars - Notification No. 27/2005-ST dated 07.06.2005
(Furnishing of Returns by Special Category of Persons)
- CBEC Circular No. 71/1/2004-ST dated 02.01.2004
(E-filing of Service Tax Returns
- CBEC Circular No. 75/5/2004-ST dated 03.03.2004
(Monetary limits and powers of adjudication by officer)
Relevant Case Laws - L. H. Sugar Factories Ltd. v. CCE, Meerut II (2004) 165 ELT 161 (Tirbunal, Delhi)
- Re Thyzren Krupp JBM Pvt. Ltd. (2005) 180 ELT 285 [CCE (Appeals), Chennai]
- CCE New Delhi v. Sentinel Security Pvt. Ltd. (2001) 134 ELT 806 (Tribunal, Delhi)
- International Security Organization v. CCE, New Delhi (2002) 144 ELT 343 (Tribunal, Delhi)
Q.1 When is the service tax return to be filed?
Q.2 Is any return or statement prescribed for the purposes of Service Tax and if so, what are the documents to be submitted along with the returns/statement?
Q.3 What are the statutory provisions relating to filing service tax return and when it should be filed?
Q.4 are the provisions relating to the provisional assessment where actual amount cannot be correctly estimated?
Q.5 If 25th day of October or April (i.e. the last date of filing returns) is Sunday or Bank/ Government holiday and the payment is made/return is filed on the subsequent working day, would it be treated as delay and subject to interest and penalty?
Q.6 How should a non-resident or person from outside India pay tax and file return?
Q.7 What is to be done when no services are provided in a half year?
Q.8 Where an assessee opts for exemption scheme, will he be liable to file service tax return?
Q.9 Is the return also required to be filed by service receiver in case of goods transport services?
Q.10 Who is liable to file returns in case of insurance agents?
Q.11 Who is liable to file returns in case of mutual fund distributors?
Q.12 What is the penalty for delay in filing of return/non-filing of return?
Q.13 How is the payment of tax verified?
Q.14 Who is the authority for making assessments?
Q.15 Under what conditions, recovery proceedings may be initiated?
Q.16 What is the time limit for issuing a notice under section 73 for recovery?
Q.17 What is meant by relevant date fro issuance of notice under section 73?
Q.18 What should the show cause notice contain?
Q.19 Who is vested with the powers of Central Excise Officer?
Q.20 What are the provisions for ‘best judgment assessment’ in service tax?
Q.21 Can a mistake be rectified under service tax?
Q.22 When can the power of rectification be invoked by Central Excise Officer?
Q.23 Are there any qualifications in relation to rectification by Central Excise Officer?
Q.24 Can the orders be revised?
Q.25 What documents should be annexed to service tax returns?
Q.26 Can some tips or hits suggested for filing service tax returns?
Q.27 What is e-filing of Service Tax returns?
Q.28 Who can e file their returns?
Q.29 What is the procedure for e-filing?
Q.30 Whether a single return is sufficient when an assessee provides more than one Service or separate return is to be filed for each service?
Q.31 Is the Service Tax payable by the assessee, even in cases where his clients do not pay for the service rendered or pay only a part of the bill raised in this regard?
Q.32 Can any adjustment of tax liability be made by an assessee on his own in cases where Service Tax has been paid in excess?
Q.33 How the adjustment of excess tax paid by the assessee is made on his own on prorata basis?
Q.34 Whether any return is required to be filed by input service distributor?
Q.35 Can excess service tax be refunded?
Q.36 Is any interest payable for delayed refund?
Q.37 Can an appeal be preferred against denial of refund?
Q.38 Which form should be used to apply refund of service tax?
Q.39 What is meant by e-filing?
Q.40 Who can e-file their service tax returns?
Q.41 Can all types of returns be filed electronically?
Q.42 Is e-filing compulsory?
Q.43 What about assesses who fall under more than one category ?
Q.44 Do they have to simultaneously also file a manual return or submit manual TR6 challans separately?
Q.45 What is the procedure for e-filing ?
Q.46 To whom should an assessee make a request for e-filing permission?
Q.47 How will the permission for e-filing of returns be communicated to the assessee?
Q.48 Is it necessary for assessee to have an e-mail address ?
Q.49 Can assessee change his user ID and password after he receives the same from the Department?
Q.50 What should assessee do when he change his e-mail address?
Q.51 What is an STP code ?
Q.52 Will assessee have to have a STP code for e-filing ?
Q.53 How can assessee be allotted a 15 digit STP code?
Q.54 Is PAN a must for issuing a 15 digit STP code?
Q.55 Why PAN is essential?
Q.56 Can assessee authorize somebody to file the return on his behalf?
Q.57 How does the assessee get an acknowledgement after filing my return ?
Ans.1 The returns are required to be filed for each half-year (April-September, October- March) in October and April respectively. There is no requirement of filing annual return. For details, readers may refer to Rule 7 of Service Tax Rules.
Ans.2 The Service Tax assessees are required to file a half-yearly return in Form ST-3 or ST-3A, in triplicate, to the Superintendent of Central Excise, having jurisdiction. The return is to be filed within 25 days from the last day of the half-year it relates to and should be accompanied by copies of all T.R.6 challans issued (as a evidence of payment of service tax) in the relevant period. Thus, the returns for financial half-yearly ending 30th September and 31st March are required to be filed by 25th October and 25th April, respectively. Further, assessees filing the return for the first time should also furnish to the Department the list of all the accounts maintained by them, relating to the Service Tax along with the return.
Ans.3 Every assessee is required to submit a half yearly return in Form ST-3 or ST-3A along with a copy of the Form TR-6 in triplicate for the half year covered under the half yearly return. The half-year means the period between 1st April to 30th September and 1st October to 31st March of a financial year. Every assessee is required to submit the half yearly return by the 25th of the month following the half year i.e. the last dates for the returns shall be as under –

1st half-year (April – September) 25th October 2nd half year (October – March) 25th April
The period covered under availing can be unto a maximum of six month and not more than six months. For example, an assessee starts his business of rendering taxable services on 15th December 2004, he shall be required to file his return for only three and a half months by 25th April 2005. The period can even be smaller. If the return is not filed as aforesaid, penal provisions shall be attracted under section 77.
Ans.4 Where an assessee is for any reason, unable to correctly estimate on the date of deposit the actual amount payable for any particular month or quarter, the assessee may make a request in writing to the Asst. / Deputy Commissioner of Central Excise who may on such request, allow payment of service tax on provisional basis on such value of taxable service as may be specified.
Ans.5 No, the return filed on the working day following 25th of the said calendar month which was a holiday, would be considered as having been filed on time.
Ans.6 According to Service Tax Rules [Rule 2(1)(d) (iv), wef. 16.8.2002, in case the taxable service is provided by a person who is a non resident or is from outside India, and does not have any office in India, the person receiving taxable service in India would be responsible for paying the service tax and filing the prescribed returns of service tax.
Ans.7 If no services have been provided during a half year and no Service Tax is payable, the assessee is advised to file a Nil Return within the prescribed time limit.
Ans.8 The assessee will normally not be required to file service tax return if he is not covered under service tax provisions. If he opts for exemption scheme and also surrenders his registration certificate, then there is no necessity of filing service tax return, otherwise, a nil return is advisable to be filed so long as he retains the registration certificate.
Ans.9 Yes, service receiver becomes person liable under section 68 (2). All persons liable to pay service tax are assessees under service tax and are required to be registered for service tax purposes. All registered assessees are mandatorily required to file half yearly service tax returns.
Ans.10 In case of agents of general insurance and life insurance, service tax has to be paid and returns filed by the insurer (insurance company) and not the agent.
Ans.11 W.e.f. 01.04.2005, mutual fund distributors (agents) are not required to file service tax return as they are no longer person liable. Instead, mutual funds or asset management companies will be treated as person liable and shall be required to file service tax returns. (refer Notification No. 7/2005-ST dated 01.03.2005)
Ans.12 Failure to furnish prescribed service tax return tax return would attract a penalty which may extend to an amount not exceeding Rs.1000 at the discretion of the Central Excise Officer for each failure to file return within the due date under section 77.
Ans.13 Return under section 70 has to be filed with Superintendent of Central Excise. Under section 73, Central Excise Officer can initiate action for service tax not levied or short levied or short paid or for any erroneous refund.
Ans.14 Under section 70, assessee is required to make a self-assessment himself and then furnish the return. Prior to 10.09.2004, Assistant or Deputy Commissioner of Central Excise were authorized to pass necessary order of assessment under section 73. W.e.f. 10.09.2004, recovery proceedings can be initiated under section 73.
Ans.15 Any one or more of the following situations must exist for invoking recovery action under Section 73-
(i) service tax has not been levied or short levied.
(ii) service tax has not been paid or short paid.
(iii) service tax has been erroneously refunded.
On being satisfied, adjudicating authority can issue and serve show cause notice to the person liable asking him to show cause why recovery of service tax not be made from him.
Ans.16 A notice under section 73 shall have to be issued within the time limit as prescribed under sub-section (1) as follows-
(a) short levy / short payment / erroneous refund arising due to specified reasons- within five year from the relevant date
(b) short levy / short payment / erroneous refund arising due to any other reason- within one year from the relevant date
The specified reasons mentioned are as under-
(i) fraud,
(ii) collusion,
(iii) willful mis-statement,
(iv) suppression of facts,
(v) contravention of any provision / rule with the intention to evade service tax
However, where the service of the notice has been stayed by any court order, the period of such stay shall not be considered in computing the period of one year or five years, as stipulated above.
Ans.17 Relevant date as per sub-section (60 would be computed as under –
(i) where service tax has not been levied or paid or short levied or short paid:
(a) when return filed - date of filing of return
(b) when return not filed - due date on which return was to be filed
(c) any other case - date on which service tax should have been paid
(ii) where service tax is assessed on provisional basis- date of adjustment of service tax after its final assessment
(iii) where service tax has been erroneously refunded- date of refund
Ans.18 The show cause notice so issued must indicate the following-
(i) specific allegations against the person liable
(ii) amount of service tax sought to be recovered
(iii) basis on which such service tax is payable
Show cause notice should be served on the person chargeable with service tax within the specified time limit. After the show cause notice is served, adjudicating authority shall provide reasonable opportunity of being heard to the person chargeable and determine the amount of tax payable.
Ans.19 Director General of Service Tax (DGST) has been notified as the Central Excise Officer and vested with the powers of Chief Commissioner of Central Excise. His jurisdiction shall be throughout Indian territory vide Notification No. 46/98-ST dated 28.10.1998.
Ans.20 The provisions of best judgment assessment were contained in section 72. Accordingly, if any person failed to make the return under section 70 or failed to comply with notices for verification of tax assessed under section 71 or if the assessing authority was not satisfied with the correctness or completeness of the accounts of the assessee, the assessing authority, after considering all the relevant material in possession, used to make the assessment of value of taxable service in writing by an order, to the best of his judgment. Such order would determine the sum payable by the assessee or refundable to assessee on the basis of that best judgment assessment (section 72). This provision has since been omitted by the Finance Act, 2004 w.e.f. 10.09.2004.
Ans.21 Yes, section 74 provides for the rectification of mistake. The mistake apparent from the record can be rectified by the assessing officer (Central Excise Officer) within two years from the date on which such order was passed. The amendment can be done on own motion or if any mistake is brought to the notice by assessee or Commissioner of Central Excise or Commissioner (Appeals).
If such an order has the effect of enhancing the tax liability or reducing the amount of refund, the order shall be made only after providing an assessee with a reasonable opportunity of being heard.
Ans.22 For rectification of mistake, Central Excise Officer shall have power to rectify or amend the assessment order in any of the following situations / cases –
i) on his own motion, or
ii) if any mistake is brought to his notice by any of the following –
a) assessee concerned
b) Commissioner of Central Excise
c) Commissioner of Central Excise (Appeals)
Ans.23 The Central Excise Officer cannot amend the order unless he gives notice to the assessee of his intention to do so and an opportunity of being heard in cases resulting in –
a) enhancement of an assessment, or
b) reduction in amount of refund, or
c) otherwise enhancing the assessee’s liability
Ans.24 Yes, under section 84, revision of orders by the Commissioner is provided. According to section 84, the Commissioner of Central Excise has power to revise the order and he may call for and examine the records of any proceedings conducted by the Assistant or Deputy Commissioner of Central Excise, subordinate to him, may cause enquiry as he deems fit, and pass such order thereon as he may think fit. However, no order which is prejudicial to the assessee should be passed unless the assessee is granted an opportunity of being heard. The order under section 84 should be communicated in writing to the assessee, assessing officer and the board. Also, revision orders under section 84 cannot be passed if any appeal against such issue(s) is pending before Commissioner (Appeals). Order under section 84 cannot be passed after the expiry of two years from the date of the order which is sought to be revised.
Ans.25 Return should be submitted in Form ST-3 along with-
 From ST-3A, if applicable (Memorandum)
 Treasury challan TR-6 evidencing payment of tax
 List of books of accounts (in case of first return only)
 Form of Service Tax credit, if availed.
 Details of Service Tax calculation for each service separately
 Details of interest calculation, if any
 Details of Cenvat credit being availed
Ans.26 Following points should be noted by assessees while filing returns of service tax –
1) This is a half yearly return to be submitted by assessee to the Superintendent of Central Excise.
2) Return must be submitted by 25th of the following month after the end of each half year i.e., September and March.
3) The return should be submitted in triplicate.
4) Return shall be submitted to Superintendent of Central Excise.
5) Single return can be filed by an assessee for multiple services rendered.
6) Return can also be filed electronically.
7) This return should be accompanied by memorandum of difference (ST-3A) and payment challan (TR-6).
8) The value of taxable services should be computed on the basis of bills collected.
9) The memorandum of assessment is an assessment order-cum-demand notice and any demand raised must be deposited within the stipulated time.
10) Nil return is also advisable to be filed.
11) Return may be revised before the assessment is made.
12) Separate sheets should be used/ attached for each month / quarter.
13) ST-3 returns can also be filed by Registered Post.
14) Documentary evidence for payment should be enclosed to return.
15) It should be specified on what account any other amount is paid.
16) Cenvat credit would be available only for service tax and education cess and not for interest or penalty.
Ans.27 E-filing is a facility for the electronic filing of Service Tax returns by the assessee from his office, residence or any other place of choice, through the Internet, by using a computer. The assessee can go to the e filing site ‘Home Page’ by typing the address http://servicetaxefiling.nic.in in the address bar of the browser. E-filing of returns is a optional facility.
Ans.28 All assessees having a 15 digit STP code are allowed to avail of the facility of electronic filing of their ‘Return’; This facility had since been extended to all services vide Circular No. 71/1/2004 dated 02.01.2004 prior to which it was available only for ten services. The assessee should take care to ensure that he has been indicating his 15 digit STP code in the challans used by him. An assessee who has not done this may also opt for e filing but he will have to submit copies of challans manually to the department after e filing his return, evidencing payment of duties, after indicating his 15 digit STP code on each challan.
Ans.29 Those assessees coming under the above service categories and who have 15 digit Service Tax Payer Code allotted to them, should file an application to their jurisdictional AC/DC as laid out in Trade Notice issued in this regard. They should mention a trusted e-mail address in their application, so that the department can send them their userword and password to help them file their return. They should log on to the Service Tax E-filing Home Page using the Internet. On entering their STP Code, user word and password in the place provided on the Home Page they will be permitted access to the E filing facility. They should then follow the instructions given therein.
Ans.30 A single return would suffice. However, details in each of the column in Service tax the Forms ST-3 has to be furnished separately for each of the taxable service rendered by the assessee. This has also been clarified that vide Circular No. 72/2/2004-ST dated 02.01.2004.
Ans.31 The Service Tax is required to be paid only on the value of taxable service received in a particular month or quarter as the case may be and not on the gross amount billed to the client. However, in all such cases where the amount received is less than the gross amount charged/billed to the client, the Service Tax assessee are required to amend the bills either by rectifying the existing bill or by issuing a revised bill and by properly endorsing such charge in the billed amount. In case an assessee fails to do so, his liability to pay Service Tax shall be on the amount filled by him to the client for the services rendered.
Ans.32 Yes. Facility for adjusting excess payment of service tax by the assessee towards future liability is now provided for in the law. In cases, where an assessee has paid to the credit of Central Government service tax in respect of a taxable service which is not so provided by him either wholly or partially, for any reason, the assessee can adjust the excess service tax so paid by him calculated on a pro-rata basis against his service tax liability for the subsequent period, provided that the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received. However, the assessee is required to file the details in respect of such suo-moto adjustments done by him at the time of filing the service tax returns. In all other cases of excess payment, the refund claims have to be filed with the Department.
Ans.33 The excess service tax paid in the previous returns period can be adjusted against the tax liability of the subsequent period on prorata basis in terms of sub rule (3) of Rule 6 of Service Tax Rules, 1994.
Example (1) If the assessee who is an Individual /Proprietary or partnership firm has paid Rs. 6000/- in excess of service tax liability during the previous half year ending period, the firm can adjust service tax for the subsequently period @ Rs. 3000/- per quarter and not at a stretch.
Example (2) If the assessee who is a Private Limited Company and has paid Rs. 6000/- in excess of the liability of service tax, during the previous half year ending period, the assessee can adjust Rs. 1000/- only per month in his subsequent tax liability and not at a stretch.
Ans.34 As per Notification No. 27/2005-ST dated 07.06.2005, input service distribution is required to furnish a return to jurisdictional superintendent of Central Excise as prescribed in rule 9(10) of Cenvat Credit Rules, 2004.
Ans.35 Yes, Section 11B of the Central Excise Act, 1944 deals with refund of tax. The refund applications in prescribed Form ‘R’ are required to be filed within one year from the relevant date.
Ans.36 If the tax ordered to be refunded is not refunded to the assessee within or period of three months of the refund application, the Department shall be liable to pay simple interest @ 6 percent.
Ans.37 Any person or assessee aggrieved by denial of refund or short refund can appeal under section 85 to the Commissioner of Central Excise (Appeals) within a period of three months from the date of receipt of order.
Ans.38 Form R of Central Excise Rules, 1944 is used for claiming refund under rule 173S of Central Excise Rules 1944. For form. It should be submitted to the Assistant or Deputy Commissioner of Central Excise, as the case may be. The assessee should prove that the incidence of duty has not been passed on to the buyer or any other person. This restriction of ‘unjust enrichment’ is applicable to service tax also. Assessees should comply with the following requirements –
a) Claim for refund must be in prescribed Form R of Central Excise Rules in duplicate.
b) It should be signed and pre-receipted with a revenue stamp.
c) It should be filed within the limitation period of one year from the date of payment of tax.
d) Proof should be submitted that refund will not result in unjust enrichment.
e) Appeal can be preferred against order denying the refund. The refund claim should be backed by adequate documentary evidence(s) of payment of service tax, excess payment, refund due etc.
Ans.39 E-filing is a facility for the electronic filing of Service tax returns by the assessee from his office, residence or any other place of choice, through the Internet, by using a computer. The assessee can go to the e-filing site ‘Home Page’ by typing the address http://www.servicetaxefiling.nic.in in the address bar of the browser.
Ans.40 Assessees having a 15 digit STP Code and falling under any taxable service is allowed to avail of the facility of electronic filing of service tax returns. As per Boards Circular NO 71/1/2004-ST Dated: January 2, 2004 F.No.137/9/2003(Pt.)-CX4 all assesses of the 58 having a 15 digit STP code can avail of the facility of electronic filing of their ‘Return’. The assessee should have been indicating his 15 digit STP code in the challans used by him for the period for which the returns are being filed. (An assessee who has not done this may also opt for e-filing, but he will have to submit copies of Challans, evidencing payment of service tax to the concerned excise formations after indicating his 15 digit STP code on each challan)
Ans.41 At present only Service Tax return ‘ ST 3’ can be filed electronically.
Ans.42 No. E-filing of returns is an assessee facilitation measure of the department in continuation of its modernization and simplification program. It is an alternative to the manual filing of returns.
Ans.43 Assesses have to file separate returns for each of the services provided by them.
Ans.44 If an assessee files electronic returns for any of the services and receives an electronic acknowledgement for the same, he need not file a manual return for the same service. He need not file the manual TR 6 copies for the said returns if he has taken care to ensure that he has been indicating his 15 digit STP code in the challans used by him as stated above. If the assessee is a provider of more than one service, it is desirable that he pays his challan service wise, so as to take maximum benefit of the procedure. However, if he is paying for more than one service in a single challan, he should ensure that the Account Head Code for each service is clearly mentioned. The service tax paid for more than one service should not be clubbed together. He should however preserve the manual copies of the TR 6 challan for production before the officer, in the rare occasion it is called for, or as stated above, if the assessee has not been indicating his 15 digit STP code in the challans used by him and submitted along with his earlier returns.
Ans.45 All Service Tax assesses satisfying the above norms and who have a 15 digit Service Tax Payer Code allotted to them, should file an application to their jurisdictional AC / DC as laid out in Trade Notice issued in this regard. They should mention a trusted e-mail address in their application, so that the department can send them their user word and password to help them file their return. They should log on to the Service Tax E-filing Home Page using the Internet. On entering their User word (15 digit STP Code) and password in the place provided on the Home Page they will be permitted access to the E-filing facility. They should then follow the instructions given therein.
Ans.46 The assessee should file an application to their jurisdictional AC / DC as elucidated in TN mentioned above, for e-filing permission.
Ans.47 The permission for e-filing will be communicated to the assessee through the e-mail address provided by him. It would also contain the user ID and password required for e-filing.
Ans.48 Yes. They should mention a trusted e-mail address in their application, so that the department can send them their User Word and Pass word, to help them file their Return.
Ans.49 While the assessee cannot change the user ID, he can and must change the password immediately after receiving it by e-mail from the department. This he can do by logging on to the CBEC website at the address http://www.cbec.gov.in and navigating to the e-filing site ‘Home Page’ where he has an option to changehis password. He can also directly go to the e-filing site Home Page by typing the address http://www.servicetaxefiling.nic.in in the address bar of the browser. It is the responsibility of the assesse to keep the password confidential and ensure that it is not known to anyone else. This is to prevent misuse. The responsibility for the return filed using the password of the assesse will be his.
Ans.50 When the assesse changes his e-mail address he should intimate the department of his new e-mail address. This will help him in continuing to receive messages from the department electronically.
Ans.51 The STP code stands for Service Tax Payer Code. It is used by the computer as a unique identifiers for the assesses records. The department is presently allotting 15 digit STP codes to individual assesses, irrespective of the number of services the assesse may be offering.
Ans.52 Yes, the assessee has to have a 15 digit STP code for e-filing
Ans.53 The assessee will be allotted a 15 digit STP code by the jurisdictional Central Central Excise Division after he applies for the same as per the procedure set out in Trade Notice issued in this regard. For details he can contact his jurisdictional Commissionerate.
Ans.54 The Board through its circular No. 35/3/2001-CX.4 dt.27.08.2001 has instructed that every Service Tax Payer should be allotted a PAN based code. However since some assesses are still not having PAN numbers, a provision has also been made in the Computer System for issuing a 15 digit temporary (TMPR) STP code. When the assessee gets his PAN number, he should immediately inform the department about the number, and the new STP code will be issued incorporating his PAN number. He need not file any new returns for the past period just because of his new STP code.
Ans.55 In 1999, the Government of India decided that all business units transacting business with different departments of the Government would be given unique identifiers which have the Permanent Account Number (PAN) assigned by the Income Tax Department as the backbone. This is the concept behind the Service Tax Payer Code where the first 10 digits constitute the PAN, the next two digits ST is to indicate the special purpose of the code and the last three digits of the code is to constitute a running serial number.
Ans.56 No. The responsibility for filing the returns and all the information contained therein is that of the assessee. The assessee should hence keep his user ID and password allotted by the department confidential.
Ans.57 After submitting his Return, the assessee should wait to get an acknowledgement on his computer screen, of having successfully filed his Return. He should then print a copy of the same as proof of having filed his return. He should be advised to quote the Computer generated number of the acknowledgement in all his future correspondence with the department on this return.
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