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Circular No. 134 /3 / 2011 - ST
F.No.354/42/2011-TRU
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise& Customs
Tax Research Unit
North Block, New Delhi
8
th
April, 2011
To
Chief Commissioners of Central Excise and Service Tax (All),
Director General (Service Tax),
Director General (Central Excise Intelligence),
Director General (Audit),
Commissioners of Service Tax (All),
Commissioners of Central Excise and Service Tax (All).
Madam/Sir,
Subject : - Education Cess and Secondary and Higher Education Cess - reg.
Representations have been received from the field formations, seeking clarification regarding the applicability of service tax
exemption to Education Cess (refers to both Education Cess leviable under Finance (No.2) Act, 2004 and Secondary and
Higher Education Cess leviable under Finance Act, 2007), under notifications where 'whole of service tax" stands exempted.
Apparently the doubt arises in the context of Tribunal's Order in the matter of M/s. Balasore Alloys Ltd. Vs CCE, Customs and
Service Tax, BBSR-I (2010-TIOL-1659-CESTAT-KOL).
2. The issue has been examined. Though Tribunal's Order referred above is in favor of revenue, it is inconsistent with the policy
intention of the Government to exempt education cess in addition to service tax, where 'whole of service tax' stands exempted.
According to section 95(1) of Finance (No.2) Act, 2004 and section 140(1) of Finance Act, 2007, Education Cess and
Secondary and Higher Education Cess are leviable and collected as service tax, and when whole of service tax is exempt, the
same applies to education cess as well. Since Education Cess is levied and collected as percentage of service tax, when and
wherever service tax is NIL by virtue of exemption, Education Cess would also be NIL.
3. This being the principle, field formations are directed not to initiate proceedings to recover the education cess, where 'whole
of service tax' stands exempted under the notification. Extending the same principle, where education cess has been refunded
to exporters along with service tax, by virtue of exemption notifications where 'whole of service tax' is exempt, the same need
not be recovered.
4. Field formations may be instructed accordingly.
5. Please acknowledge the receipt of this circular. Hindi version to follow.
(J. M. Kennedy)
Director, TRU
Tel: 011-23092634
circulars no 134 2011 | iKargos