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Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

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Publish Date: 09 Aug, 2014
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TOUR OPERATORS: CRY IS STILL ON, BUDGET 2014 PARTLY WIPED THEIR TEARS

TOUR OPERATORS: CRY IS STILL ON, BUDGET 2014 PARTLY WIPED THEIR TEARS

An article by:-
CA. Pradeep Jain
CA. Preeti Parihar
CA. Vaibhav Bothra

 
INTRODUCTION

The budget 2014 has arrived and the Hon’ble Finance minister has bought in several, if not many, changes in the service tax regime. In his endeavour to put the indirect tax laws in road to GST, he has avoided major changes but for small. However, these small changes have somewhat failed to meet the expectations of few sectors. This sentence seems to be 100% correct in case of travel agents and tour operators. Why? Answer is here in this piece of diction…
 
BACKDROP

The story started with the introduction of negative list and place of provision of services rules in July 2012. In our previous two articles titled ‘Travel agents: Travelling in uncertainties of service tax law part I and part II’, we had in detail discussed the confusion and ambiguities being faced by the tour operators and travel agents due to simultaneous effect of the rule 6A of Service Tax Rules, 1994 and the rule 9 of the Place of Provision of Service Rules, 2012. In the above mentioned two articles carried out at the eminent website of Taxindiaonline.com, we have brought the anomalies faced by the tour operators and travel agents. These service providers earn foreign exchange by providing their valuable services to the foreign nationals, however, by virtue of existing rule 9 of the POPS Rules; the place of provision of service is taxable territory. The cases where the place of provision of service is taxable territory cannot be termed as export of service under rule 6A of the Service Tax Rules, 1994 inspite of the fact that the valuable foreign exchange is being earned. This anomaly was also represented to Central Government and it was hoped that the Budget, 2014 will come up with the adequate amendment in these rules. However, the amendments made in this regard do not seem to fulfil the desires of travel agents and tour operators.
 
THE AMENDMENTS

Budget, 2014 has made two amendments with respect to the issue discussed herein:-
 

  • Amendment-1:-                                                                                                                                                                                                                                
First amendment has been made by amending the mega exemption notification no. 25/2012-ST dated 20.6.2012. Notification no. 6/2014-ST dated 11.7.2014 has inserted a new entry no. 42 in the list prescribed in the mega exemption notification. This entry no. 42 reads as follows:-

 
“42. Services provided by a tour operator to a foreign tourist in relation to a tour conducted wholly outside India.”.
Thus, by virtue of this entry, the services provided by a tour operator will be exempted if the following conditions are satisfied:-

  • The services are provided by a tour operator.
  • The services are being provided to a foreign tourist.
  • The services should be in relation to the tour which is conducted wholly outside India.

 
Implication of this amendment:-

Inserting the entry no. 42 in the mega exemption notification confirms the fact that there is no exemption if the similar services are carried out partly within India and partly outside India. Also, if the services are rendered wholly within India, no exemption is there despite fact that the services are being rendered to the foreign tourists and valuable foreign exchange is earned. Since the exemption has been given exclusively to the foreign tours, it is going to benefit only the big names of the tourism sector and the small tour operators will suffer as were suffering prior to this amendment. Even the representation made by the association of tour operators had clearly brought about the fact that levying the service tax on their services will dump the Indian tour operators and they will not be able to survive in front of the giants of tourism sector. This amendment has not done anything for the small and medium tour operators carrying out the tours within India and problem will continue as it is, excluding a few who will get benefitted by this amendment.
 

  • Amendment-2:-

Second amendment has been made in the rule 9 of Place of Provision of Services (POPS) Rules, 2012. This rule states that the place of provision of services in the specified cases will be the location of service provider. The specified cases cover the “intermediary services”. The definition of “intermediary” specifically excluded the services provided by “commission agent of goods”. Now, this definition has been amended and the new definition reads as follows:-
(f) intermediary means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service (hereinafter called the main service) or a supply of goods, between two or more persons, but does not include a person who provides the main service or supplies the goods on his account;‘;
Thus, by virtue of new definition, the term intermediary will now include the commission agent of goods also. Accordingly, the rule 9 of POPS rules will be equally applicable on the commission agent of goods and place of provision of service will be the location of service provider in this case.

Implication of this amendment:-

This amendment has wide range of implications which have been discussed as follows:-

  • Including the commission of agents of goods in the definition of intermediary has brought the same under the purview of rule 9 of the POPS Rules. Thus, the place of provision of service will be location of service provider, i.e. within taxable territory in the cases where the commission agent is an Indian establishment or Indian individual.

 

  • Rule 6A of the Service Tax Rules, 1994 states that there shall be export of service if the conditions prescribed in this rule are satisfied. One of the conditions is that the place of provision of service should be outside taxable territory. Since this condition is not satisfied in case of the services provided by the Indian commission agent (though he is providing the services related to export goods), it will not be treated as export of service. Accordingly, service tax would be levied on these services.

 

  • Since the services of commission agents in relation to export goods is taxable, it will be out of pocket expense for them as the department is reluctant in allowing its Cenvat credit in view of High Court decision given in the case of M/s CADILA HEALTHCARE LTD. [2013-TIOL-12-HC-CESTAT-AHM].

 

  • In case of foreign commission agent, the place of provision of service as per rule 9 of POPS will be “location of service provider”, i.e. outside India. Accordingly, it will be treated as export of service provided all the other conditions prescribed in rule 6A of the Service Tax Rules, 1994 are satisfied. Therefore, being an export of service no service tax would be levied in this case.

 

  • The services provided by the foreign commission agent in respect of the export goods are already exempted under the notification no. 42/2012-ST dated 29.6.2012. This notification exempts the services provided by a commission agent located outside India and engaged by the exporter in India to act on his behalf to cause sale of goods exported by him. This exemption is allowed subject to satisfaction of conditions specified in this notification.

 

  • The services provided by the foreign commission agent will not now get covered in the charging section 66B of the Finance Act which reads as follows:-

 
“66B. There shall be levied a tax (hereinafter referred to as the service tax) at the rate of twelve per cent. on the value of all services, other than those services specified in the negative list, provided or agreed to beprovided in the taxable territory by one person to another and collected in such manner as may be prescribed.”
 
Where the services are being provided is to be determined by the provisions contained in POPS rules. Rule 9 of the POPS rules covers the case of foreign commission agent of goods. Thus, the POPS will be location of service provider, i.e. outside India. Thus, the services provided by the foreign commission agent will not be covered by the charging section 66B, accordingly, no service tax can be levied on the same.
 

  • Now, since the absolute exemption has been given to services provided by the foreign commission agents causing sale of goods by virtue of rule 9 of POPS rules; the exemption notification no. 42/2012-ST dated 29.6.2012 will become obsolete.

 
GOOD BYE WORDS:-

One amendment made in POPS rules related to commission agents of goods can be said to have given somewhat relief to the exporters who shall now get the absolute exemption without satisfying the conditions laid down in the notification no. 42/2012-ST. However, the most awaited first budget of Modi government can be said to have failed in meeting the expectations of the tour operators. Before the announcement of budget, the tour operators were eagerly waiting for a necessary amendment in the POPS rules or in the rule 6A of the Service Tax Rules so that the anomaly gets rectified and their services come under the purview of export of services. However, this budget has not come up with that kind of amendment in the POPS rules or in the Service Tax rules. Rather, another exemption and that too improper, has been given in the mega exemption notification. As rightly said, only solution is not sufficient; it should be a proper solution. Here the solution is not proper, so department will get set and go for the war against the innocent tour operators, ultimately hampering the growth of Indian tour operators and tourism too.
 

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PRADEEP JAIN, F.C.A.

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