All for a signature - IRS Officer trying for a transfer through MOS(R) - Charge sheet issued without approval of Disciplinary Authority (FM) non est: SC
TIOL-DDT 2185
09.09.2013
Monday
THE allegations levelled against the officer are that while working as Additional Commissioner of Income Tax in the year 2003, he failed to maintain integrity and exhibited conduct unbecoming of a government servant, as he approached a practicing Chartered Accountant in Chennai pertaining to his transfer from Chennai to Mumbai and in turn an approach and contact was made to 1st P.A. to G.N. Ramachandran, the then Minister of State for Finance (Revenue), Govt. of India and on a demand of certain money, he agreed to pay the bribe for ensuring his transfer.
The officer was duly charge-sheeted. He approached the CAT on the ground that the charge sheet was not approved by the Disciplinary Authority who happened to be the Minister of Finance.
The Tribunal held, “As no specific approval has been accorded by the disciplinary authority to the charge sheet, it is right from inception without jurisdiction and is not sustainable in law.”
The charge sheet was quashed; however the government was accorded liberty to take appropriate action against the officer.
The Government took the matter to the High Court with the question, “whether the charge sheet issued to the IRS officer in connection with a disciplinary inquiry was required to be approved by the disciplinary authority or not”.
The High Court agreed with the Tribunal that “the charge sheet ought to have been approved by the disciplinary authority before it is issued. Since there was no such approval obtained, the charge-sheet was issued without jurisdiction.”
An unrelenting Government took the matter in appeal to the Supreme Court. The Apex Court last week dismissed the govt appeal agreeing with the CAT and High Court.
The charge sheet was quashed for want of a signature - of the FM. It seems there are several such charge sheets without the approval of the FM and they all will be thrown out now. This is a very important case for the Department and several charged officers. Of course the Government is technically free to issue the charge sheets afresh, if they can get the FM to sign!
Please see 2013-TIOL-43-SC-SERVICE
Government cannot withhold Gratuity and Pension during pendency of departmental proceeding or criminal proceeding: SC
THE Supreme Court in a recent judgement held that the Government cannot withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings. The Supreme Court observed,
It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service.
What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve?
The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion.
It is thus hard earned benefit which accrues to an employee and is in the nature of “property”. This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India.
Please see 2013-TIOL-44-SC-SERVICE
Customs - Duty Drawback Scheme: All aspects to be covered in speaking orders issued in each case of export - CBEC
IN Circular No.46/2011-Cus dated 20.10.2011, CBEC had directed, inter alia, passing of speaking orders, after following the principles of natural justice, under section 74 of Customs Act on the issues of establishing identity/determination of use of goods under re-export under section 74 of Customs Act.
In Instructions in F. No. 603/01/2011-DBK, dated 31.07.2013, Board had, taking note of Audit observations regarding payment of claims under section 74 in a manner inconsistent with provisions of Rule 5 of Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 relating to manner and time of claiming drawback, directed field formations to, inter alia, ensure due diligence in the application of said Rule.
Now, for removal of doubts , Board clarifies that appealable speaking orders in original are to be issued in section 74 cases and that the aspect of how the provisions, of the various sub-rules of said Rule 5, are satisfied or not satisfied, as also other attendant aspects relevant to sanction of the re-export drawback, should also invariably be covered in the speaking order in original issued by the officer.
How many officers know what a speaking order is and how many of them actually write a speaking order?
CBEC Circular No. 35/2013-Cus, Dated: September 05 2013
Import of Gold - sequencing of import of gold being followed by export of gold - Not Necessary - DGFT
CHAPTER 71 of ITC(HS) 2012 Schedule 1 stipulates that import of gold is ‘subject to RBI regulations'. The Reserve Bank of India has issued certain guidelines including A.P. (DIR Series) Circular No.25 dated August 14, 2013 on the operational aspect of the scheme of import of gold. Para 2(f) of the circular No.25 states:
"(f) Any authorization such as Advance Authorization / Duty Free Import Authorization (DFIA) is to be utilized for import of gold meant for export purposes only and no diversion for domestic use shall be permitted."
This condition (f) is getting interpreted as every import under Advance Authorisation /DFIA has to be followed by a corresponding export. Normally import precedes export under AA/DFIA but in certain cases export may precede import. It is necessary that every import under AA/DFIA must be duly accounted for by corresponding exports without insisting on the sequence: import preceding export.
Accordingly, DGFT has notified that import of gold under AA/DFIA would have a corresponding export but not necessarily import first and export later.
DGFT Notification No. 40/(RE-2013)/2009-2014, Dated: September 6, 2013
Relaxation of condition for fulfillment of export obligation in respect of consignments of gold articles
DGFT has relaxed certain conditions of para4A.8 of HBPv1 for the purpose of import/release of 20% gold consignment (under customs bond) against export of gold jewellery/articles of gold.
Para 4A.8 (a) stipulates what may constitute “Proof of Export” and lists three specific documents as:
(i) E.P. copy of the shipping bill;
(ii) Customs attested invoice;
(iii) Bank certificate of realisation in Appendix 22A
Only in respect of export of gold jewellery and export of articles of gold, the document listed at (iii) above, namely “Bank certificate of realisation in Appendix 22A” will not be insisted upon so far as “proof of exports” is required as per RBI Circular No.25 dated 14.08.2013 or any other related guidelines issued by RBI or Ministry of Finance.
It is reiterated that in respect of all other exports, all the 3 documents listed above will continue to be required for establishment of proof of export. Similarly against export of gold jewellery and export of articles of gold, if any claim of export benefit like drawback, etc., is considered then Bank certificate of realisation in Appendix 22A would be required.
Now, exporters/importers can import/get their 20% gold consignment (under customs bond) released without waiting for the realization, if the other two requirements of para4A.8(a) are satisfied.
DGFT Public Notice No. 25/(RE-2013)/2009-2014, Dated: September 6, 2013
FEMA - Export and Import of Currency - RBI enhances limit
AS per Regulation (2) of Foreign Exchange Management (Export and Import of Currency) (Amendment) Regulations, 2009, any person resident in India may take outside India or having gone out of India on a temporary visit, may bring into India (other than to and from Nepal and Bhutan) currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.7,500 per person.
As part of providing greater flexibility to the resident individuals travelling abroad, the existing limit has been enhanced to Rs. 10,000 per person.
Now, any person resident in India:
i) may take outside India (other than to Nepal and Bhutan) currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.10,000 (Rupees ten thousand only) per person; and
ii) who had gone out of India on a temporary visit, may bring into India at the time of his return from any place outside India (other than from Nepal and Bhutan), currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.10,000 (Rupees ten thousand only) per person.
What is the great flexibility provided by enhancing the limit by Rs. 2500?
AP (DIR Series) Circular No.39/RBI., Dated: September 6, 2013
No Sensitive decisions by Officers seeking VRS - CBDT
IT has come to the notice of the CBDT that the officers, even after giving notice for VRS, continue to take decisions of sensitive nature. The Central Vigilance Commission (CVC) has taken a serious view of this practice.
It is, therefore, decided by the Board that an officer who has submitted, his/her application for voluntary retirement from service (VRS) should take decisions of sensitive nature, if any, with the approval of next higher authority.
But shouldn't this apply to even officers who retire on superannuation
CBDT Office Order No. C-29016/43/2013 -Ad.VI(A); Dated: September 6, 2013
Supreme Court orders CBI probe against AP DGP
IT is clash of the Titans - two senior IPS officers of Andhra Pradesh. A letter landed up in the Home Ministry two years ago from a Member of Parliament seeking an enquiry against Dinesh Reddy, the Present Director General of Police, Andhra Pradesh alleging that he had amassed disproportionate assets in the name of his wife and her power of attorney holders. It turned out that the complaint was not given by the MP, but his signature was forged. It seems another senior officer Umesh Kumar who was a contender for the post of DGP was involved in the episode and a charge sheet had been filed against him in a Criminal Court.
Now the Supreme Court has directed the CBI to investigate the matter against Dinesh Reddy on the allegations of acquiring the disproportionate assets.
In the meanwhile the State Government has called for the explanation of Umesh Kumar who had while working as DG of ACB sought the details of call records of two mobile phone numbers, one held by the DGP Dinesh Reddy and another by his wife.
Service Tax - Value of goods and materials supplied free of cost outside taxable value or gross amount charged - CESTAT LB
THE Larger Bench of the CESTAT passed a landmark classic order on Friday. In construction service, if the service recipient provides cement and steel, should the value of the cement and steel be included in the “gross amount charged” or the ‘consideration' received for providing the service? Board had clarified that gross amount charged shall include the value of goods and materials supplied.
The Larger Bench in an erudite sentence held, "goods and materials, supplied/ provided/ used by the service provider for incorporation in the construction, which belong to the provider and for which the service recipient is charged towards the value of such supply/ provision / use and the corresponding value whereof was received by the service provider, to accrue to his benefit, whether independently specified as attributable to the specific material/ goods incorporated or otherwise, would alone constitute the gross amount charged." This simply means that only the value of goods supplied by the service provider and not the recipient should be included in the gross amount.
We bring you this scholarly order today. Please see Breaking News. Please also see today's article in ST se GST Tak.
Jurisprudentiol - Tuesday's cases
Customs
Printout generated from PC seized cannot be admitted as evidence for non-fulfillment of statutory condition of Section 138C of Customs Act, 1962 - demand based on retracted statement is not maintainable - veracity of panchanama doubtful - LME price cannot be applied to imported scrap: CESTAT
WITH regard to the demand confirmed on account of contemporaneous imports, the Bench observed that the adjudicating authority considered the evidence retrieved from computer printout and which has been held as not admissible as per Section 138C of the Customs Act, 1962. The Bench further observed that that part of the demand has also been confirmed on the basis of a publication of mineral and metal review and the comparative chart prepared by the appellant indicating the values of contemporaneous imports of aluminium scrap at various ports has not been considered by the adjudicating authority and hence demand on account of contemporaneous imports is not sustainable. In the matter of adoption of LME price, the Bench held that LME price is the price of prime metal and admittedly the appellant had imported the scrap and hence demand on the basis of LME price is also not sustainable.
Income Tax
Whether goods which are declared to Customs as scrap and sold without putting same to any manufacturing process is covered u/s 206C and assessee is liable to collect tax at source - YES: ITAT SB
THE issues before the Bench are - Whether the goods which were imported as scrap and sold by the assessee without any manufacturing is covered under section 206(C) of the Income tax Act and assessee is required to collect tax at source; Whether first proviso inserted in sub-section (6A) of section 206C with effect from 1.7.2012 is retrospective in nature as it not only seeks to rationalize the provisions relating to collection of tax at source but is also beneficial in nature in that it seeks to provide relief to the collectors of tax at source from the consequences flowing from non/short collection of tax at source after ensuring that the interest of the Revenue is well protected and Whether the definition of 'scrap' under the I-T Act is wider than the same under the Customs Act. And the verdict partly goes in favour of the Revenue.
Service Tax
Fabrication or erection of tank at site brings into existence an immovable property and, therefore, it cannot be said that appellant has undertaken any manufacturing activity as defined u/s 2(f) of the CEA, 1944 - activity undertaken would qualify as Erection, Commissioning and Installation services - Pre-deposit ordered: CESTAT
AS far as the fabrication or erection of tank at site is concerned, the activity brings into existence an immovable property. Therefore, it cannot be said that the appellant has undertaken any manufacturing activity defined under Section 2(f) of the Central Excise Act, 1944. Therefore, the activity undertaken by the appellant would qualify as erection, commissioning and installation services. According to the appellant, the liability would come to Rs. 10 lakhs.
Happy Ganesh Chaturthi
See our Columns Tomorrow for the judgements
Until Tomorrow with more DDT
Have a nice day.
Mail your comments to vijaywrite@taxindiaonline.com
