Determination of point of taxation in other cases [Rule 8A] :
Rule 8A is the residual rule to determine the point of taxation by way of best judgment to handle situations where the tax-payer is unable to furnish one or more of the details needed i.e. date of payment or date of invoice or both to determine point of taxation. It provides as follows:-
Where the point of taxation cannot be determined as per these rules as the date of invoice or the date of payment or both are not available, the Central Excise Officer, may, require the concerned person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account such material and the effective rate of tax prevalent at different points of time, shall, by an order in writing, after giving an opportunity of being heard, determine the point of taxation to the best of his judgment.
| 1. Definitions under rule 2
In these rules, unless the context otherwise requires, (a) Act means the Finance Act, 1994. (b) Continuous supply of service means (i) any service which is provided, or agreed to be provided continuously or on recurrent basis, under a contract, for a period exceeding three months with the obligation for payment periodically or from time to time, or (ii) where the Central Government, by a notification in the Official Gazette, prescribes provision of a particular service to be a continuous supply of service, whether or not subject to any condition. Services notified by the Central Government In this regard the Central Government has prescribed the provision of following services to be a continuous supply of service:- (i) Telecommunication Services (ii) Works Contract Services (c) Invoice means the invoice referred to in rule 4A of the Service Tax Rules, 1994 and shall include any document as referred to in the said rule. (d) Point of taxation means the point in time when a service shall be deemed to have been provided. (e) “Change in effective rate of tax” shall include a change in the portion of value on which tax is payable in terms of a notification issued in the Official Gazette under the provisions of the Act, or rules made there under. 2. Definition of date of payment under rule 2A Date of payment shall be:- (a) date on which the payment is entered in the books of accounts or (b) date on which payment is credited to the bank account of the person liable to pay tax whichever is earlier. (A) Date of payment in case of change in effective rate of tax or a new levy between the above two dates In case, (i) there is a change in effective rate of tax or when a service is taxed for the first time during the period between such entry in books of accounts and its credit in the bank account; (ii) the bank account is credited after four working days from the date when there is change in effective rate of tax or a service is taxed for the first time; and (iii) the payment is made by way of an instrument which is credited to a bank account, the date of payment shall be the date of credit in the bank account instead of the date of recording of payment in the books of accounts. (B) If any rule requires determination of the time or date of payment received: the expression “date of payment” shall be construed to mean such date on which the payment is received. |