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THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIANEW DELHI
POST-BUDGETMEMORANDUM
2014Indirect�Taxes
ABOUT ICAI AND INDIRECT TAXES COMMITTEE OF ICAIABOUT ICAI AND INDIRECT TAXES COMMITTEE OF ICAIABOUT ICAI AND INDIRECT TAXES COMMITTEE OF ICAI
INDIRECT TAXES COMMITTEE
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA(Set up by an Act of Parliament)
ICAI Bhawan, A-29, Sector - 62, NOIDA (U.P.) India
Telephone Board : +91 120 3045 900 Ext. 954E-mail : [email protected]; Website : http://www.icai.org
POST-BUDGET MEMORANDUM
2014
Indirect Taxes
THE INSTITUTE OF CHARTERED ACCOUNTANT OF INDIA NEW DELHI
CONTENTS Page No.
I. INTRODUCTION 1
II. EXECUTIVE SUMMARY 3
III SUGGESTIONS IN DETAIL
A. Service Tax
1. Section 67A- Proposed amendment to determination of rate of exchange for calculation of taxable value in respect of certain services
10
2. E- Payment of Service Tax 11
3. Increase in value of service portion in respect of certain works contracts
11
4. Interest on delayed payment of service tax 12
5. Proposed amendment in Section 80(1) –No waiver of penalty even when complete details of the transactions are available in the specified record.
14
6. Services received by Educational Institutes 16
7. Proposed Amendment in Section 83 Proposed -Application of Section (2A) of the Central Excise Act, 1944
16
8. Non-removal of condition of payment in case of partial reverse charge Credit Mechanism
17
9. Definition of Intermediately Services 18
10. Time Limits for Completion of Adjudication 18
B. Central Excise
11. Pre-deposit for Appeal 20
12. Appeal to the Supreme Court 22
13. Amendment in rule 6 of Central Excise (Determination of Price of Excisable Goods Rules), 2000
23
C. CENVAT Credit Rules, 2004
14. Availment of Cenvat Credit on Input and Input Service 24
15. Transfer facilities to LTU 25
D. Common Issues
16. Creation of additional posts 27
POST-BUDGET MEMORANDUM-2014
I. INTRODUCTION
1.0 The Council of the Institute of Chartered Accountants of India
considers it a privilege to submit this Post-Budget Memorandum to the
Government.
1.1 In this memorandum, we have suggested certain amendments to the
proposals contained in the Finance (No.2) Bill, 2014 which would help the
Government to achieve the desired objectives.
1.2 We have noted with great satisfaction that the suggestions given by
the Committee in the past have been considered very positively. Certain
representations made in the post-budget memorandum of earlier years
have formed the basis of amendments proposed in the current Finance Bill.
In formulating our suggestions in regard to the Finance (No. 2) Bill 2014,
the Indirect Taxes Committee of the ICAI has considered in a balanced
way, the objectives and rationale of the Government and the practical
difficulties/hardships faced by taxpayers and professionals in application
of the Indirect Tax Laws. We are confident that the suggestions of the
Indirect Taxes Committee of ICAI given in this Memorandum shall receive
positive consideration.
1.3 In this memorandum, firstly an executive summary of our
suggestions on the specific clauses of the Finance (No.2) Bill, 2014 has been
given in respect of Indirect Taxes. The detailed suggestions are given
thereafter.
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
2
1.4 In case any further clarifications or data is considered necessary, we
shall be pleased to furnish the same.
The contact details are:
Name and Designation Contact Details
Ph. No. Email Id
CA. Atul Gupta , Chairman, Indirect Taxes Committee
9810103611 [email protected]; [email protected]
CA. Sharad Singhal, Secretary, Indirect Taxes Committee
09310542608 0120-3045954
II.
EXEC
UT
IVE
SUM
MA
RY
S.N
o.
Top
ic(s
) S
ugg
esti
on(s
)
A.
SE
RV
ICE
TA
X
1.
S
ecti
on
67A
- P
rop
osed
am
end
men
t to
d
eter
min
atio
n o
f ra
te o
f ex
chan
ge f
or
calc
ula
tion
of
taxa
ble
val
ue
in r
esp
ect
of
cert
ain
ser
vice
s
It is
sug
gest
ed t
hat
AS
11 b
e pr
escr
ibed
for
dete
rmin
ing
the
rate
of
exch
ange
for
cal
cula
tion
of
taxa
ble
valu
e in
res
pect
of
cert
ain
serv
ices
in
orde
r to
avo
id e
xist
ence
of
two
diffe
rent
set
of
met
hod
for
acco
unti
ng o
f for
eign
exc
hang
e re
late
d tr
ansa
ctio
ns.
Add
itio
nally
, it
is s
ugge
sted
tha
t in
stea
d of
pre
scri
bing
new
rul
es
for
dete
rmin
atio
n of
rat
e of
exc
hang
e, th
e m
etho
d fo
r de
term
inat
ion
of r
ate
of e
xcha
nge
in l
ine
wit
h A
S-11
be
incl
uded
und
er S
ervi
ce
Tax
Rul
es, 1
994
itse
lf.
2.
E
- Pay
men
t of
Ser
vice
Tax
It
is
su
gges
ted
that
ap
prop
riat
e lim
it
for
the
e-
paym
ent
be
pres
crib
ed a
ccor
ding
to
the
data
ava
ilabl
e w
ith
the
min
istr
y in
or
der
to s
uppo
rt th
e sm
all s
ervi
ce p
rovi
ders
.
3.
In
crea
se i
n v
alu
e of
ser
vice
por
tion
in
re
spec
t of
cert
ain
wor
ks
con
trac
ts
It is
sug
gest
ed th
at th
e en
try
give
n in
sub
-cla
use
B &
C o
f Rul
e 2A
(i
i) b
e m
erge
d to
60%
inst
ead
of 7
0%.
4.
In
tere
st o
n d
elay
ed p
aym
ent
of s
ervi
ce
tax
It is
sug
gest
ed t
hat
this
am
endm
ent
shou
ld b
e ap
plic
able
for
thos
e as
sess
es
who
ha
ve
colle
cted
th
e ta
x bu
t no
t re
mit
ted
to
the
gove
rnm
ent.
The
ass
esse
e m
akin
g de
lay
in p
aym
ent
of t
ax d
ue t
o ot
her
reas
ons
be n
ot p
enal
ized
in p
arit
y w
ith
the
evad
ers.
The I
nstit
ute o
f Cha
rter
ed A
ccou
ntan
t of I
ndia
Post
Bud
get M
emor
andu
m, 2
014-
Indi
rect
Tax
es
4
It i
s su
gges
ted
that
the
rat
es o
f in
tere
st b
e re
stor
ed t
o th
e or
igin
al
rate
at
18%
irre
spec
tive
of t
he p
erio
d of
del
ay a
s fr
om t
he a
fore
said
ca
lcul
atio
n ef
fect
ive
rate
of
inte
rest
com
es t
o 36
% p
er a
nnum
or
3% p
er m
onth
whi
ch is
ver
y hu
ge. I
t m
ay b
e no
ted
that
und
er t
he
Inco
me-
tax
Act
, del
ay in
pay
men
t of
tax
onl
y at
trac
t in
tere
st t
hat
too
at t
he m
uch
low
er r
ate
of 1
2% p
er a
nnum
(af
ter
retu
rn d
ate
18%
P.A
) an
d th
ere
is n
o pe
nalt
y pr
ovis
ions
for
dela
y in
pay
men
t of
inco
me
tax.
Wit
hout
pre
judi
ce t
o ab
ove,
it
is s
ugge
sted
tha
t a
high
er r
ate
of
inte
rest
rat
e m
ay b
e ch
arge
d ac
cord
ing
to s
lab
rate
of
the
duty
de
man
ded
to p
rote
ct th
e sm
all s
ervi
ce p
rovi
ders
.
The
int
eres
t ra
tes
for
both
the
dem
and
of t
he d
uty/
tax
and
the
refu
nd o
f the
dut
y/ta
x be
mad
e un
iform
. The
re is
nee
d fo
r fa
irne
ss
and
equi
ty in
the
rat
es a
t w
hich
inte
rest
is p
aid
by t
he d
epar
tmen
t an
d th
at is
cha
rged
from
tax
paye
r.
Furt
her,
uni
form
ity
be a
lso
ensu
red
in r
espe
ct o
f da
te o
f ch
argi
ng
inte
rest
on
duty
/tax
dem
ands
vis
-à-v
is d
ate
of p
ayin
g in
tere
st o
n re
fund
of d
uty/
tax.
Int
eres
t on
del
ayed
ref
unds
be
also
pai
d by
the
D
epar
tmen
t fro
m th
e da
te o
n w
hich
dut
y/ ta
x w
as a
ctua
lly p
aid.
5.
P
rop
osed
am
end
men
t in
Sec
tion
80(
1) –
No
wai
ver
of
pen
alty
ev
en
wh
en
com
ple
te d
etai
ls o
f th
e tr
ansa
ctio
ns
are
avai
lab
le in
the
spec
ifie
d r
ecor
d
It is
sug
gest
ed to
dro
p th
e pr
opos
ed a
men
dmen
t in
Sect
ion
80(1
).
The I
nstit
ute o
f Cha
rter
ed A
ccou
ntan
t of I
ndia
Post
Bud
get M
emor
andu
m, 2
014-
Indi
rect
Tax
es
5
6.
S
ervi
ces
rece
ived
b
y E
du
cati
onal
In
stit
ute
s
It is
sug
gest
ed th
at R
enti
ng o
f Im
mov
able
pro
pert
y se
rvic
e pr
ovid
ed
to E
duca
tion
Inst
itut
ions
con
tinu
e to
be
exem
pted
.
It i
s al
so s
ugge
sted
tha
t sc
ope
of e
xem
pted
ser
vice
s to
be
enha
nced
by
cov
erin
g gu
est
facu
lty
/ te
ache
rs,
and
com
pute
r /
IT l
ab /
so
ftw
are
serv
ices
. (O
r A
ll se
rvic
es d
irec
tly
rela
ting
to
the
deliv
ery
of e
duca
tion
or
trai
ning
to s
tude
nts)
7.
P
rop
osed
A
men
dm
ent
in
Sec
tion
83
P
rop
osed
-A
pp
lica
tion
of
Sec
tion
(2
A)
of th
e C
entr
al E
xcis
e A
ct, 1
944
It i
s su
gges
ted
not
to a
pply
Sec
tion
5A
(2A
) of
the
Cen
tral
Exc
ise
Act
, 19
44 i
n Se
rvic
e T
ax b
y am
endi
ng S
ectio
n 83
of
the
Fina
nce
Act
, 199
4.
8.
N
on-r
emov
al o
f co
nd
itio
n o
f p
aym
ent i
n
case
of
p
arti
al
reve
rse
char
ge
Cre
dit
M
ech
anis
m
It is
sug
gest
ed t
hat
appr
opri
ate
amen
dmen
t be
mad
e so
tha
t se
rvic
e re
cipi
ent
of p
arti
al r
ever
se c
harg
e be
mad
e at
par
wit
h se
rvic
e re
cipi
ent o
f 100
% r
ever
se c
harg
e ca
ses.
9.
D
efin
itio
n o
f In
term
edia
tely
Ser
vice
s
It
is
sugg
este
d th
at i
nter
med
iary
of
serv
ices
and
int
erm
edia
ry o
f go
ods
can
be c
over
ed u
nder
rul
e 3
itse
lf.
Alt
erna
tive
ly, i
t is
sug
gest
ed t
hat
appr
opri
ate
amen
dmen
t be
mad
e so
that
fore
ign
exch
ange
ear
ning
s fr
om b
oth
com
mis
sion
on
serv
ices
an
d go
ods
be z
ero
rate
d.
10.
T
ime
Lim
its
for
Com
ple
tion
of
A
dju
dic
atio
n
It i
s su
gges
ted
that
the
wor
ds u
se “
whe
re i
t is
pos
sibl
e to
do
so”
need
to
be o
mit
ted
to m
ake
it m
anda
tory
. It
may
be
note
d th
at i
n th
e In
com
e T
ax A
ct, 1
961
asse
ssm
ents
has
to
be c
ompl
eted
by
the
asse
ssin
g of
ficer
wit
h in
the
spec
ified
tim
e lim
it.
The I
nstit
ute o
f Cha
rter
ed A
ccou
ntan
t of I
ndia
Post
Bud
get M
emor
andu
m, 2
014-
Indi
rect
Tax
es
6
B.
CE
NT
RA
L E
XC
ISE
11.
P
re-d
epos
it f
or A
pp
eal
It i
s su
gges
ted
that
, P
re-d
epos
it o
f on
ly 1
% b
e de
man
ded
at f
irst
st
age
and
seco
nd s
tage
app
eal o
r 2%
be
dem
ande
d at
firs
t app
eal t
o C
EST
AT
onl
y.
Alt
erna
tive
ly, i
t is
sugg
este
d th
at a
Ban
k G
uara
ntee
be
prov
ided
as
an a
ltern
ativ
e to
pre
dep
osit
to s
afeg
uard
the
wor
king
cap
ital o
f the
as
sess
ee.
Wit
hout
pre
judi
ce t
o th
e ab
ove,
it is
sug
gest
ed t
hat
a S
lab
syst
em
may
be
intr
oduc
ed t
o sa
fegu
ard
the
smal
l sc
ale
indu
stri
es,
smal
l se
rvic
e pr
ovid
ers
or B
IFR
indu
stri
es.
It is
als
o su
gges
ted
that
the
rele
vant
pro
visi
ons
be s
uita
bly
clar
ified
su
ch
that
on
pa
ymen
t of
m
anda
tory
pr
e-de
posi
t, th
e ba
lanc
e de
man
d st
ands
aut
omat
ical
ly s
taye
d an
d no
rec
over
y pr
ocee
ding
th
ereo
f wou
ld b
e in
itia
ted
by t
he d
epar
tmen
t to
mee
t th
e in
tent
ion
beyo
nd th
e pr
opos
ed p
rovi
sion
.
It i
s su
gges
ted
that
in
case
pre
dep
osit
is
man
date
d an
d ob
ligat
ed
then
the
int
eres
t on
dut
y/ta
x de
man
ded
shou
ld n
ot b
e ch
arge
d fo
r th
e pe
riod
till
the
appe
al is
dis
pose
d of
f.
It i
s su
gges
ted
that
sai
d pr
e de
posi
t sh
ould
onl
y be
in
resp
ect
of
duty
/ tax
dem
ande
d an
d no
t on
the
pen
alty
am
ount
as
pre-
depo
sit
on p
enal
ty c
anno
t be
levi
ed u
nles
s it
s ca
use
is p
rove
d.
The I
nstit
ute o
f Cha
rter
ed A
ccou
ntan
t of I
ndia
Post
Bud
get M
emor
andu
m, 2
014-
Indi
rect
Tax
es
7
Subj
ect
to a
bove
, app
ropr
iate
cla
rific
atio
n m
ay b
e in
sert
ed t
o av
oid
the
inte
rpre
tati
on o
f TR
U L
ette
r.
It is
Sug
gest
ed t
hat
appr
opri
ate
clar
ifica
tion
be
prov
ided
in r
espe
ct
of t
he c
ases
rem
and
back
to
com
mis
sion
er f
or r
e-as
sess
men
t an
d w
hat
wou
ld h
appe
ned
to d
epos
ition
of
pre
dep
osite
d ag
ains
t or
igin
al o
rder
and
whe
ther
aga
in
pre
depo
sit
need
s to
be
paid
to
appe
al fo
r re
-ass
esse
d or
der.
It is
sug
gest
ed t
hat
appr
opri
ate
clar
ifica
tion
be p
rovi
ded
in r
espe
ct
of a
ppea
l to
ass
essm
ent
orde
r pa
ssed
aga
inst
dut
y pa
id u
nder
pr
otes
t.
12.
A
pp
eal t
o th
e S
up
rem
e C
ourt
It i
s su
gges
ted
that
dis
posa
l of
app
eals
per
tain
ing
to a
ll ca
ses
be
also
rou
ted
thro
ugh
Hig
h C
ourt
as
it i
s ea
sily
acc
essi
ble
from
va
riou
s pa
rts
of th
e C
ount
ry.
13.
A
men
dm
ent
in r
ule
6 o
f C
entr
al E
xcis
e (D
eter
min
atio
n
of
Pri
ce
of
Exc
isab
le
Goo
ds
Ru
les)
, 200
0
In c
ase,
whe
re g
oods
are
sol
d at
pri
ce l
ess
than
the
cos
t, th
e tr
ansa
ctio
n is
at
ar
m’s
le
ngth
an
d in
voic
e pr
ice
cons
titu
tes
tran
sact
ion
valu
e. T
here
fore
, it
is s
ugge
sted
tha
t tr
ansa
ctio
n va
lue
wou
ld b
e th
e as
sess
able
val
ue w
hen
good
s ar
e so
ld a
t a
pric
e le
ss
than
the
man
ufac
turi
ng c
ost.
C.
CE
NV
AT
CR
ED
IT R
UL
ES
, 200
4
14.
A
vail
men
t of
Cen
vat
Cre
dit
on
In
pu
t an
d I
np
ut S
ervi
ce
It i
s su
gges
ted
that
the
sai
d ne
w p
rovi
so s
houl
d no
t be
mad
e ap
plic
able
as
it is
not
in s
ync
wit
h pr
inci
ples
of V
alue
Add
ed T
ax/
The I
nstit
ute o
f Cha
rter
ed A
ccou
ntan
t of I
ndia
Post
Bud
get M
emor
andu
m, 2
014-
Indi
rect
Tax
es
8 CE
NV
AT
Cre
dit.
Als
o, t
his
is n
ot in
line
wit
h in
tern
atio
nal t
rade
an
d pr
actic
es.
Furt
her,
in c
ase
the
paym
ent
to p
rovi
der
of s
ervi
ces/
man
ufac
ture
r is
not
mad
e w
ithi
n th
e pe
riod
of 3
mon
ths
then
the
rece
iver
of i
nput
or
inp
ut s
ervi
ce i
s re
quir
ed t
o re
vers
e th
e C
ENV
AT
cre
dit
so
avai
led
and
he is
allo
wed
to
avai
l the
sam
e on
ly w
hen
the
paym
ent
is m
ade
to t
he v
endo
r. W
ith
this
am
endm
ent,
the
rece
iver
of
inpu
t or
inpu
t se
rvic
e is
com
pelle
d to
mak
e th
e pa
ymen
t w
ithi
n 6
mon
ths
to a
vail
the
cred
it w
hich
lead
s to
blo
ckag
e of
wor
king
cap
ital.
The
re c
ould
be
inst
ance
s w
here
in t
he d
ate
of C
EN
VA
T i
nvoi
ce
wou
ld b
e da
ted
muc
h ea
rlie
r th
an t
he d
ate
of a
ctua
l re
ceip
t of
go
ods.
In
this
sce
nari
o, t
he a
sses
see
lose
s su
bsta
ntia
l ti
me.
It
is
sugg
este
d th
at it
wou
ld h
ave
been
bet
ter
if si
x m
onth
s ti
me
peri
od is
al
low
ed
from
th
e da
te
of
rece
ipt
of
good
s in
stea
d of
is
sue
date
/invo
ice
date
.
In c
ase
of i
nter
pret
atio
nal
issu
es a
nd e
xten
ded
peri
od i
s in
voke
d,
then
the
re w
ill b
e de
man
d of
5 y
ears
whe
reas
cre
dit
of t
he s
ame
peri
od w
ill n
ot b
e al
low
ed w
hich
is a
gain
st th
e sp
irit
of l
aw a
nd w
ill
caus
e ha
rdsh
ip t
o as
sess
ee.
To
illus
trat
e, a
n as
sess
ee i
s re
nder
ing
100
Rs.
ser
vice
s an
d ou
tsou
rcin
g th
e sa
me
in 8
0 R
s.. N
ow
in c
ase
of o
ld p
erio
d in
vest
igat
ion
on s
ome
inte
rpre
tati
onal
iss
ue o
r ba
sed
on s
ome
judg
men
t fo
rm a
pex
cour
t, he
is
oblig
ed t
o pa
y ta
x on
R
s. 1
00 b
ut w
ill n
ot b
e al
low
ed to
cla
im c
redi
t on
Rs.
80/
-. W
e m
ay
live
exam
ple
in c
ase
of r
eim
burs
emen
t of
exp
ense
s, w
here
diff
eren
t ju
dgm
ent s
ugge
sts
to p
ay ta
x af
ter
a su
bsta
ntia
l per
iod
pass
ove
r.
The I
nstit
ute o
f Cha
rter
ed A
ccou
ntan
t of I
ndia
Post
Bud
get M
emor
andu
m, 2
014-
Indi
rect
Tax
es
9
Wit
hout
pre
judi
ce t
o ab
ove,
it
is s
ugge
sted
tha
t an
app
ropr
iate
cl
arifi
cati
on b
e pr
ovid
ed i
n re
spec
t of
ret
enti
on m
oney
ret
aine
d by
th
e se
rvic
e pr
ovid
er
or
man
ufac
ture
r as
pe
r th
e te
rms
of
cont
ract
.
15.
T
ran
sfer
fac
ilit
ies
to L
TU
One
of
the
mai
n at
trac
tion
s to
the
LT
U s
chem
e w
as t
he f
lexi
bilit
y gi
ven
to s
uch
LTU
's.
Such
fle
xibi
lity
was
des
irab
le g
iven
the
co
ntri
butio
n of
the
LT
U t
o th
e ex
cheq
uer.
Wit
hdra
wal
of
faci
litie
s w
ould
onl
y m
ake
the
sche
me
unat
trac
tive
and
giv
e do
ubts
in
the
min
d of
the
tax
pay
ing
LTU
. Th
eref
ore,
it
is s
ugge
sted
tha
t th
is
amen
dmen
t be
wit
hdra
wn
fort
hwit
h.
D.
CO
MM
ON
IS
SU
ES
16.
C
reat
ion
of
add
itio
nal
pos
ts
It is
sug
gest
ed t
hat
crea
tion
of a
ddit
iona
l pos
ts a
t th
e hi
gher
leve
ls
shou
ld b
e do
ne o
nly
whe
re t
he s
tatu
te c
lear
ly p
rovi
des
for
spec
ific
func
tion
s an
d af
ter
disc
ussi
on w
ith
stak
e ho
lder
s. I
t sh
ould
not
be
seen
tha
t po
sts
are
crea
ted
whe
re t
here
is
no a
ddit
iona
l be
nefit
to
the
taxp
ayer
. It
al
so
mili
tate
s ag
ains
t th
e ve
ry
prin
cipl
e of
"m
axim
um g
over
nanc
e m
inim
um G
over
nmen
t".
III. SUGGESTIONS IN DETAIL A. SERVICE TAX
1. Section 67A- Proposed amendment to determination of rate of exchange for calculation of taxable value in respect of certain services
Section 67A of the Finance Act 1994 provides that the rate of service tax, value of a taxable service and rate of exchange, if any, shall be the rate of service tax or value of a taxable service or rate of exchange, as the case may be, in force or as applicable at the time when the taxable service has been provided or agreed to be provided. For the purposes of this section, “rate of exchange” means the rate of exchange referred to in the Explanation to section 14 of the Customs Act, 1962 (52 of 1962).
Union Budget 2014-15 has amended the explanation to Rule 67A so as to enable the Government to prescribe rules for determination of rate of exchange for calculation of taxable value in respect of certain services. This amendment has been proposed in view of requests from the trade and industry to delink the conversion from the notified Customs rates of exchange as at present.
Issue
Determination of rate of exchange by government prescribed rules will lead to duplication of accounting as in the case of Income Tax. .
Assesses follow Accounting Standard 11 prescribed by Companies Act 1956/2013 dealing with Foreign Exchange Rates and Foreign Currency transactions. It states that “foreign currency monetary items should be reported using the closing rate. However, in certain circumstances, the closing rate may not reflect with reasonable accuracy the amount in reporting currency that is likely to be realised from, or required to disburse, a foreign currency monetary item at the balance sheet date. In such circumstances, the relevant monetary item should be reported in the reporting currency at the amount which is likely to be realised from, or required to disburse, such item at the balance sheet date. “
Thus, introduction of new rules for determination of rate of exchange for calculation of taxable value in respect of certain services will propagate double set of accounting and add to the woes of the assessee.
Suggestions:
It is suggested that AS 11 be prescribed for determining the rate of exchange for calculation of taxable value in respect of certain services in order to avoid existence of two different set of method for accounting of foreign exchange related transactions.
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
11
Additionally, it is suggested that instead of prescribing new rules for
determination of rate of exchange, the method for determination of rate of exchange in line with AS-11 be included under Service Tax Rules, 1994.
2. E- Payment of Service Tax
Rule 6(2) of Service Tax Rules, 1994 has been substituted with effect from October 1, 2014 vide Notification No. 9/2014 -ST dated 11.07.2014 with a view to make e-payment of Service Tax mandatory for every assessee.
However, proviso to aforesaid Rule 6(2) provides that jurisdictional Assistant Commissioner of Central Excise or jurisdictional Deputy Commissioner may allow the assessee to deposit the Service Tax by any mode other than internet banking. Before this amendment, e-payment of Service Tax was not mandatory if the amount of duty to be paid was less than Rs. 1 lac.
Issues
The above amendment may cause undue hardship for small service providers. Small Service Providers, mainly in unorganized sectors, are uneducated and it is a possibility that they may not be able to make e-payment of Service Tax due to lack of facilities. In case of default, Interest and Penalty would also be levied.
Suggestion
It is suggested that appropriate limit for the e payment be prescribed according to the data available with the ministry in order to support the small service providers.
3. Increase in value of service portion in respect of certain works contracts
Notification 11/2014- ST dated 11-07-2014 amends taxability of Service Portion of Works Contracts related to maintenance, repair, completion and finishing services such as glazing, plastering, floor and wall tiling, installation of electrical fittings of an immovable property with effect from 1st October 2014. Taxable Value will be 70% of Total Amount Charged for the works contract other than original works.
Before Amendment, Service Portion in respect of Works Contracts
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
12
related to maintenance, repair, completion and finishing services such as glazing, plastering, floor and wall tiling, installation of electrical fittings of an immovable property was 60% of Total Amount Charged for the works contract
Issue
Most of the States provide standard deduction to the extent of 30% in case of works contract related to maintenance, repair, reconditioning or restoration or servicing of any goods or maintenance, repair, completion and finishing services such as glazing, plastering, floor and wall tiling, installation of electrical fittings of an immovable property. Rest 70% is chargeable to VAT considering the sale of material in case of works contract. In case of aforesaid services it may be noted that, cost of material used is on a higher end.
70% is already chargeable to VAT and with this amendment another 70% is chargeable to Service Tax. This leads to payment of Taxes on 140% of the value which in itself is a hardship.
Suggestion
It is suggested that the entry given in sub-clause B & C of Rule 2A (ii) be merged to 60% instead of 70%.
4. Interest on delayed payment of service tax
In exercise of the powers conferred by Section 75 & in supersession of the Notification No. 26/2004-ST dated 10.09.2004; the Central Government vide Notification No. 12/2014-ST dated 11.07.2014 has fixed the following rates of simple interest per annum for delayed payment of Service Tax with effect from 01.10.2014
S. No Period of delay Rate of Simple Interest (1) (2) (3)
1. Upto Six Months 18% 2.
More than six months and upto one Year
18% for the first six months of delay and 24% for the delay beyond 6 Months
3. More than One Year 18% for the first six months of delay; 24% for the period beyond six months upto one year and 30% for any delay beyond one year
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
13
Issue
In order to have better understanding of the aforesaid interest rates, the following illustration has been provided:
For Instance: M/s ABC Ltd discharges its Service Tax Liability amounting to Rs 1,00,000 for the Month of April 2014 on 6th Nov 2015. In that case, amount of interest required to be paid by M/s ABC Ltd shall be computed as under:
The due date of discharging Service Tax Liability in the aforesaid case shall be 06th May 2014. Thus, interest shall be computed as under:
The interest rate slab is very harsh for the assessee as delay of 3 years means interest of almost 100%.
Additionally, a penalty under section 76 of the Finance Act, 1994 is imposed on non-payment of service tax at the rate of Rs. 100/- per day of default or 1% per month, whichever is higher.
Period Days for
Interest
Computation of amount of interest (As
by Amended
Computation of amount of
interest (Old Provision)
comparison
Interest for the period 07.05.2014 to 06.11.2014
184 Days
=100000*18% *184 / 365 = 9074
=100000*18%* 184/365 = 9074
NO EFFECT
Interest for the period 07.11.2014 to 06.05.2015
181 Days
=100000*18%*181/365= 8,926
=100000*24%*181/365= 11,901
INCREASE BY 33.33%
Interest for the period 07.05.2015 to 06.11.2015
184 Days
=100000*18%*184/365= 9,074
=100000*30%*184/365= 15,123
INCREASE BY 66.67%
Total Interest payable by ABC Ltd.
27,074 36,099
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
14
Thus, another 12% for the year will be imposed for the same default i.e. if the default is beyond one year then highest slab of interest will be applicable plus the penalty under section 76 will be imposed thereby accumulating the interest and penalty together to 42%, which is very high.
Suggestion
It is suggested that this amendment should be applicable for those assesses who have collected the tax but not remitted to the government. The assessee making delay in payment of tax due to other reasons be not penalized in parity with the evaders.
It is suggested that the rates of interest be restored to the original rate at 18% irrespective of the period of delay as from the aforesaid calculation effective rate of interest comes to 36% per annum or 3% per month which is very huge. It may be noted that under the Income-tax Act, delay in payment of tax only attract interest that too at the much lower rate of 12% per annum (after return date 18% P.A) and there is no penalty provisions for delay in payment of income tax.
Without prejudice to above, it is suggested that a higher rate of interest rate may be charged according to slab rate of the tax demanded to protect the small service providers.
The interest rates for both the demand of the duty/tax and the refund of the duty/tax be made uniform. There is need for fairness and equity in the rates at which interest is paid by the department and that is charged from tax payer.
Further, uniformity be also ensured in respect of date of charging interest on duty/tax demands vis-à-vis date of paying interest on refund of duty/tax. Interest on delayed refunds be also paid by the Department from the date on which duty/ tax was actually paid.
5. Proposed amendment in Section 80(1) –No waiver of penalty even when complete details of the transactions are available in the specified record
Section 80(1) is proposed to be amended to exclude reference of first proviso to Section 78(1). The aforesaid proposed amendment removes the power to waive 50% penalty imposed in cases where Service Tax has not been levied or paid or has been short levied or short paid or
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
15
erroneously refunded by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of Chapter V of the Finance Act, 1994 or the rules made there under but true and complete details of transactions are available in the specified records. Thus, penalty levied under section 78(1) cannot be dropped on the basis of reasonable cause.
Issue
The reason for the said amendment of the section is to safeguard the revenue against loss, if any. The penalty has been provided in addition to interest. Mere fact that without mens rea, any can be punished or a penalty could be imposed is not a blanket power without providing for any justification. In the Indian Constitutional scheme, power of legislature is circumscribed by fundamental rights. Judicial review of legislation is permissible on the ground of excessive restriction as against reasonable restriction which is also described as proportionality test. Section 37 of Central Excise Act, which is the rule making power, is clear that penalty can be imposed only when the assessee is guilty of intending to evade the payment of duty, the penalty cannot be imposed without such intention.
For any penal proceedings, the following conditions laid down in Hindustan Steel, 83 ITR 26 (SC) should be applied :
Penalty can be levied only if assessee acted deliberately, i.e., mens rea, guilty mind is essential before penalty can be levied,
Power to levy penalty is discretionary and penalty cannot be levied merely because it is lawful to do so,
No penalty can be levied for technical or venial breach of the provisions, and
No penalty can be levied where breach of provisions flows from bona fide belief of the assessee.
When the assessee acts with the bona fide belief, there cannot be any intention to evade duty and penalty cannot be levied. (i) Akbar Badruddin Jiwani v. Collector of Customs 1990 (47) ELT 161 (SC); (ii) Tamil Nadu Housing Board v. Collector 1990 (74) ELT 9 (SC)
Suggestion
It is suggested to drop the proposed amendment in Section 80(1)
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
16
6. Services received by Educational Institutes
The Mega Exemption Notification No. 25/2012 ST dated 20.06.2012 has been amended in respect of providing services of renting of immovable property to educational institutions stands withdrawn with effect from 11th July, 2014 vide Notification No. 06/2014-ST dated July 11, 2014. The government has therefore limited the scope of exemption in lieu of renting of immovable property and through specification of auxiliary services.
Issue
The levy of service tax on renting of immovable property provided to the educational institutions will substantial increase the cost to the education.
Further to remove the ambiguity, the auxiliary services has been defined where in the scope has not covered the services provided by Guest Faculty / teachers and IT lab services.
Suggestion
It is suggested that Renting of Immovable property service provided to Education Institutions continue to be exempted.
It is also suggested that scope of exempted services to be enhanced by covering guest faculty / teachers, and computer / IT lab / software services. (Or All services directly relating to the delivery of education or training to students)
7. Proposed Amendment in Section 83 Proposed -Application of Section (2A) of the Central Excise Act, 1944
It is proposed to include Sub-section (2A) of Section 5A of the Central Excise Act, 1944 under section 83 of Finance Act, 1994. As a result, Central Government would be able to add and give retrospective effect to the explanations to any notification or orders issued earlier subject to the condition that such explanation must have been added within a year from the date of issue of such notification.
Issue:
The proposed change is against the policy statement of Finance minister regarding retrospective amendment in Tax Laws.
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
17
Suggestion
It is suggested not to apply Section 5A(2A) of the Central Excise Act, 1944 in Service Tax by amending Section 83 of the Finance Act, 1994.
8. Non-removal of condition of payment in case of partial reverse charge Credit Mechanism
Notification No. 21/2014 –CE dated 11th July, 2014 has inserted a proviso in Rule 4(7) which state that in respect of an input service, where the service recipient is liable to pay a part of service tax and the service provider is liable to pay the remaining part, the CENVAT Credit in respect of such input service shall be allowed on or after the day on which payment is made of the value of input service and the service tax paid or payable as indicated in invoice, bill or, as the case may be, challan referred to in rule 9.
Due to above proviso, the service recipient would not able to take credit in the case of partial reverse charge unless he has made payment of input service and service tax paid or payable there on.
However, in the case of 100% reverse charge, credit is available to the service recipient once he made the payment of tax to the Government. Also in other than reverse charge cases, service recipient or manufacturer can take credit of input or input service on receipt of invoice without making any payment.
Issue
In the case of partial reverse charge, proposed amendment has put undue hardship to the recipient of service which mandate to make payment of input service and service tax thereon to avail the CENVAT Credit on such services. The proposed amendment is against the industry norms, which provide credit period to the vendor for making payment of services and may cause working ccapital problem for the service recipient.
Suggestion:
It is suggested that appropriate amendment be made so that service recipient of partial reverse charge be made at par with service recipient of 100% reverse charge cases.
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
18
9. Definition of Intermediately Services
Notification No. 14/2014 –ST dated 11th July, 2014 has amended the definition of “intermediary” to mean a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service or 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.
Issues
Due to the said new definition, the foreign inflow would become chargeable to service tax.
Suggestion:
It is suggested that intermediary of services and intermediary of goods can be covered under rule 3 itself.
Alternatively, it is suggested that appropriate amendment be made so that foreign exchange earnings from both commission on services and goods be zero rated.
10. Time Limits for Completion of Adjudication
Section 73 is proposed to be amended for providing time limits for completion of adjudication as follows:
The Central Excise Officer shall determine the amount of service tax due under subsection (2)—
(a) within 6 months from the date of notice, where it is possible to do so, in respect of cases of Service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded whose limitation is specified as 18 months in sub-section (1);
(b) within one year from the date of notice, where it is possible to do so, in respect of cases fraud, collusion etc. where extended period of limitation of 5 years is invoked or cases where during the course of any audit, investigation or verification it is found that any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded but the true and complete details are available in the specified records falling under the proviso to sub-section (1) or the proviso to sub-section (4A).";
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
19
Issue
The proposed amendment is use of the phrase “where it is possible to do so”, which make it the provision recommendatory rather than mandatory.
Suggestion
It is suggested that the words use “where it is possible to do so” need to be omitted to make it mandatory. It may be noted that in the Income Tax Act, 1961 assessments has to be completed by the assessing officer with in the specified time limit.
B. CENTRAL EXCISE
11. Pre-deposit for Appeal
Existing Section 35F provides that where an appeal is to be preferred before Commissioner (Appeals) or before Tribunal, duty, interest or penalty shall be deposited prior to filing appeal. However, the Commissioner (appeals) or CESTAT may waive deposit of such adjudicated levies. Further, in terms of Section 35C(2A), the stay granted by the CESTAT stands vacated where the appeal is not disposed off within 365 days from the date of order of the stay.
Section 35F is proposed to be substituted with a new section to prescribe a mandatory pre-deposit of 7.5% of the duty demanded or penalty imposed or both for filing the appeal before the Commissioner (Appeals) or the Tribunal at the first stage, and 10% of the duty demanded or penalty imposed or both for filing second stage appeal before the Tribunal. However, the amount of pre-deposit payable shall be subject to a ceiling of Rs. 10 Crore. It is also pertinent to add here that all pending appeals or stay applications shall be governed by the statutory provisions prevailing at the time of filing such applications or appeals.
Issue
The proposed substitution of Section 35F is likely to prove highly detrimental to the interest of genuine assesses who might get wrongly implicated by the Revenue Authorities for evasion of taxes/duty. Further, such substitution will only lead to empower Revenue Authorities, since initiation of any proceedings against an assessee, will ultimately lead to depositing of a certain percentage of amount, by an assessee, with the treasury even if it not a legitimate due to the Government. To say it simply, proposed amendment is likely to adversely affect genuine assesses’ Right to appeal before the higher authorities.
Furthermore, taking away the right of dispensing of Pre-deposit and making it mandatory to deposit a certain percentage of duty demanded before filing an appeal, would cause undue-hardship to small entrepreneurs/ manufacturers/service providers. It is noteworthy that a small entrepreneur, as per the present amendment, will first have to make a pre-deposit of 7.5% of the duty demanded or penalty imposed or both for filing an appeal before Commissioner (Appeals) and if, the assessee doesn’t get a favorable order, then again he will have to make a mandatory pre-deposit of 10% of the duty demanded or penalty imposed or both, if he approaches the Hon’ble Tribunal. Therefore in totality, the assessee will have to pay a total of 17.5% of pre-deposit of
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
21
duty demanded and equivalent percentage of penalty [which works out to be 35% of duty demanded] which will only lead to causing undue hardship and harassment to small entrepreneurs at the hands of the Revenue.
Further, if the assessee succeeds in its appeal, then the prescribed percentage of amount deposited with the Government will have to obtained by way of refund, which itself is a daunting task for an assessee to obtain from the Department.
On the other hand, such proposed substitution is likely to benefit tax evaders, as by depositing a prescribed percentage at the time of appeal, the matter could be prolonged till the appeal comes up for regular hearing before the Hon’ble Courts.
Additionally, in the Finance Minster Speech he said that “ to expedite the process of disposal of appeals, amendment have been proposed in Custom and Central Excise Act with a view to freeing appellate authorities from hearing Stay application and to take up regular appeals for final disposal” It is not clear as to whether after the mandatory pre deposit Stay application would still need to be filed by assessee to avoid the proceedings of recovery of demand / penalty raised.
In addition, TRU Letter further states that another 10% of Pre-deposit in case of second stage of appeal in addition to the 7.5% of the demand and /or Penalty totaling to 17.5%, however language of the section 35F is different.
Further, it is submitted that in most of the cases unconditional stay has been granted by the tribunal to the assessee.
Suggestions
It is suggested that, Pre-deposit of only 1% be demanded at first stage and second stage appeal or 2% be demanded at first appeal to CESTAT.
Alternatively, it is suggested that a Bank Guarantee be provided as an alternative to pre deposit to safeguard the working capital of the assessee.
Without prejudice to the above, it is suggested that a Slab system may be introduced to safeguard the small scale industries, small service providers or BIFR industries.
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
22
It is also suggested that the relevant provisions be suitably clarified such that on payment of mandatory pre-deposit, the balance demand stands automatically stayed and no recovery proceeding thereof would be initiated by the department to meet the intention beyond the proposed provision.
It is suggested that in case pre deposit is mandated and obligated then the interest on duty/tax demanded should not be charged for the period till the appeal is disposed off.
It is suggested that said pre deposit should only be in respect of duty/ tax demanded and not on the penalty amount as pre-deposit on penalty cannot be levied unless its cause is proved.
Subject to above, appropriate clarification may be inserted to avoid the interpretation of TRU Letter.
It is suggested that appropriate clarification be provided in respect of the cases remanded back to Commissioner for re-assessment and what would happened to deposition of pre deposited against original order and whether again pre deposit needs to be paid to appeal for re-assessed order.
It is suggested that appropriate clarification be provided in respect of appeal to assessment order passed against duty paid under protest.
12. Appeal to the Supreme Court
Under section 35L(1) of Central Excise Act, 1994 (b) an appeal lies to the Supreme Court from —
any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.
Finance (No.2) Bill, 2014 has proposed to insert sub-section(2) in section 35L to provide that the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment
Issue
The above amendment would practically lead to a situation where a major chunk of the cases will be appelable to the Supreme Court by-passing High Court. As is well known that Supreme Court is already
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
23
flooded with pending matters, centralization of appeals to the Supreme Court will lead to delay in disposal of appeals.
Further, accessibility of Supreme Court is very difficult for remote area assesses which will lead to increase in the cost of litigation to the assessee.
Suggestion:
It is suggested that disposal of appeals pertaining to all cases be also routed through High Court as it is easily accessible from various parts of the Country.
13. Amendment in rule 6 of Central Excise (Determination of Price of Excisable Goods Rules), 2000
Rule 6 of the above rules has been amended so as to provide that in cases where excisable goods are sold at a price below the manufacturing cost and profit and there is no additional consideration flowing from the buyer to the assessee directly or from a third person on behalf of the buyer, value for the assessment of duty shall be deemed to be the transaction value.
Issue
Rule 6 operates only if price is not the sole consideration. In the case mentioned above, goods are deliberately sold at less than cost price and no additional consideration is flowing from the buyer to the assessee directly or from a third person on behalf of the buyer. Hence, rule 6 need not be applied in this situation.
Suggestion
In case, where goods are sold at price less than the cost, the transaction is at arm’s length and invoice price constitutes transaction value. Therefore, it is suggested that transaction value would be the assessable value when goods are sold at a price less than the manufacturing cost.
C. CENVAT CREDIT RULES, 2004
14. Availment of Cenvat Credit on Input and Input Service
With effect from 1st September 2014 Rule 4(1) and Rule 4(7) of Cenvat Credit Rules, 2004 are amended vide Notification No. 21/2014 – Central Excise (N.T.) dated 11.07.2014.
Rule 4(1) provides that the CENVAT credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. The new proviso provides that the manufacturer or the provider of output service shall not take CENVAT credit after six months from the date of issue of any of the documents specified in Rule 9(1).
Similarly, Rule 4(7) provides that the CENVAT credit in respect of input service shall be allowed, on or after the day on which the invoice, bill or, as the case may be, challan referred to in rule 9 is received. Fifth proviso to Rule 4(7) of the Cenvat Credit Rules, 2004 provides that where the Cenvat credit has already been taken on receipt of invoice but has to be paid because of non-payment to the input service provider within 3 months then the same is available later on payment to the input service provider. The new Proviso provides that the manufacturer or the provider of output service shall not take CENVAT credit after six months from the date of issue of any of the documents specified in Rule 9(1).
Prior to this amendment the availment of Cenvat credit was not barred by any time limit.
Issue
If the payment is not made to input service provider or manufacturer within 6 months of issuance of invoice, then the receiver’ of input or input services will stand to lose the CENVAT credit with the insertion of proposed proviso.
On reading of the amended provision, it is not clear if the time limit of 6 months would be applicable only for the invoices issued on or after 1st September 2014 or even for invoices which are eligible for credits prior to 1st September 2014 but assessee has not availed the credit till date.
Sometimes the assessee is not able to avail the credit due to unawareness/lack of clarity or wrong accounting in the books. The newly inserted proviso could lead to loss of credit.
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
25
Suggestions
It is suggested that the said new proviso should not be made applicable as it is not in sync with principles of Value Added Tax/ CENVAT Credit. Also, this is not in line with international trade and practices.
Further, in case the payment to provider of services/ manufacturer is not made within the period of 3 months then the receiver of input or input service is required to reverse the CENVAT credit so availed and he is allowed to avail the same only when the payment is made to the vendor. With this amendment, the receiver of input or input service is compelled to make the payment within 6 months to avail the credit which leads to blockage of working capital.
There could be instances wherein the date of CENVAT invoice would be dated much earlier than the date of actual receipt of goods. In this scenario, the assessee loses substantial time. It is suggested that it would have been better if six months time period is allowed from the date of receipt of goods instead of issue date/invoice date.
In case of interpretational issues and extended period is invoked, then there will be demand of 5 years whereas credit of the same period will not be allowed which is against the spirit of law and will cause hardship to assessee. To illustrate, an assessee is rendering 100 Rs. services and outsourcing the same in 80 Rs. Now in case of old period investigation on some interpretational issue or based on some judgment form apex court, he is obliged to pay tax on Rs. 100 but will not be allowed to claim credit on Rs. 80. We may have live example where different judgment suggests to pay tax after a substantial period pass over.
Without prejudice to above, it is suggested that an appropriate clarification be provided in respect of retention money retained by the service provider or manufacturer as per the terms of contract.
15. Transfer facilities to LTU
Rule 12A of the Cenvat Credit Rules, 2004 was introduced to centralise assessment of taxes and give certain facilities to the LTU. One such facility was transfer of CENVAT credit from one unit to another unit.
The Institute of Chartered Accountant of IndiaPost Budget Memorandum, 2014- Indirect Taxes
26
Issue
By amendment to the Cenvat Credit Rules, 2004, transfer of credit from one registered premises to another registered premises is being withdrawn wef 11.7.2014.
Suggestion
One of the main attractions to the LTU scheme was the flexibility given to such LTU's. Such flexibility was desirable given the contribution of the LTU to the exchequer. Withdrawal of facilities would only make the scheme unattractive and give doubts in the mind of the tax paying LTU. Therefore, it is suggested that this amendment be withdrawn forthwith.
D. COMMON ISSUES
16. Creation of additional posts
Vide Clause 72, 73, 88 and 89 of the Finance Bill 2014 additional posts of Principal Commissioner and Principal Chief Commissioner have been created.
Suggestion
It is suggested that creation of additional posts at the higher levels should be done only where the statute clearly provides for specific functions and after discussion with stake holders. It should not be seen that posts are created where there is no additional benefit to the taxpayer. It also militates against the very principle of "maximum governance minimum Government".
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIANEW DELHI
POST-BUDGETMEMORANDUM
2014Indirect�Taxes
ABOUT ICAI AND INDIRECT TAXES COMMITTEE OF ICAIABOUT ICAI AND INDIRECT TAXES COMMITTEE OF ICAIABOUT ICAI AND INDIRECT TAXES COMMITTEE OF ICAI
INDIRECT TAXES COMMITTEE
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