THIS is the height of bungling by the Board – they got Parliament to amend a non existing provision in the statute. A lawyer friend was very angry with us for not covering this when we point out mistakes in Board manufactured notifications leaving aside a parliament enacted blunder.

Let's get into the issue:

Clause 70 (b) of the Finance Bill, 2011 [and Section 73 (b) of the Finance Act 2011] reads as:

In the Central Excise Tariff Act, 1985 (hereinafter referred to as the Central Excise Tariff Act),— (b) the Third Schedule shall be amended in the manner specified in the Twelfth Schedule.

The Twelfth Schedule reads as:

In the Third Schedule to the Central Excise Tariff Act,

(a) for S. No. 100 and the entries relating thereto, the following shall be substituted and shall be deemed to have been substituted with effect from the 27 th day of February, 2010, namely: -

(b) after S. No. 100 and the entries relating thereto, the following S.No. and entries shall be added and shall be deemed to have been added with effect from the 29th day of April, 2010, namely: -

The explanatory memorandum to the Finance Bill 2011 states, “AMENDMENTS IN THE SCHEDULES TO CENTRAL EXCISE TARIFF ACT, 1985 – (10) The Third Schedule is being amended retrospectively to include certain specified goods, which were notified under section 4A ”.

The divine DO letter from the JS TRU on the budget in para 6.11, states, “ Parts, components and assemblies of vehicles falling under chapter 87 excluding vehicles of headings 8712, 8713, 8715 and 8716 were notified under section 4A of the Central Excise Act with effect from 27.02.2010. Subsequently, parts, components and assemblies of certain vehicles falling under chapter 84 were also notified under these provisions with effect from 29.04.2010. However, these goods were not simultaneously included in the Third Schedule to the CETA. These are now being included in the Third Schedule retrospectively w.e.f. 27.02.2010 and 29.04.2010 respectively .”

What is the Problem? Are you still wondering as what the problem is? The problem is simple – there is no third schedule to the Central Excise Tariff Act which they amended by the Finance Act. Yes Parliament has amended a non-existing schedule to the Central Excise Tariff Act!!!!!

What they wanted to amend was the third schedule to the Central Excise Act and they ended up amending the wrong Act!

They forgot to do this in 2010, and so they did it retrospectively in 2011, and bungled again. Now they will have to wait till next budget to make yet another retrospective amendment and till then the cases booked will continue – all because they did not know which Act to amend!

This is not a casual mistake – the mistake figures twice in the Finance Act and is also mentioned in the memorandum and the TRU letter. Now the Board cannot get away with a retrospective corrigendum – after all this is an Act passed by Parliament and signed by the President of India and certainly an Under Secretary in the Board cannot issue a corrigendum to a document signed by the President of India!.

How did this happen? Board must be having a printed tariff in which the third schedule is given and they must have assumed it to be the third schedule to the Tariff Act! And sheer callousness and disrespect to everyone else including Parliament of India. What would have been the image of the poor Finance Minister if somebody in Parliament had asked him to show the third schedule to Central Excise Tariff Act? All the wise men in the Board could not have helped him in tracing the non-existing schedule!

What is this jinxed amendment?

DDT 790 25.01.2008 explained the complications of the Third Schedule to the Central Excise Act.

In DDT 1360 - 17.05.2010, we suggested that ‘third schedule requires rescheduling' and mentioned, “ Notification No. 9/2010-CE (NT) dated February 27, 2010 amended Notification No. 49/2008-CE (NT) dated December 24, 2008 by substituting the contents of S. No. 108. However, S. No. 100 of the Third Schedule still retains the old description as it existed prior to issuing Notification No. 9/2010-CE (NT).

With the result if the processes specified in Section 2(f)(iii) of the Act are carried out on all those goods which were brought into the fold of MRP based assessment with effect from February 27, 2010 by virtue of amended S. No. 108 of Notification No. 49/2008-CE (NT), they will not amount to manufacture because these goods are not covered in S. No. 100 of the Third Schedule.”

They tried to make this amendment in 2011 and failed miserably.

Behind the Notification?

AFTER the amending notifications 9/2010 and 19/2010 – CENT were issued, a concerned citizen with the name Mahesh Kumar sent a mail to the President of India with copies to the Prime Minister, Sonia Gandhi, Rahul Gandhi, Revenue Secretary and a large number of politicians and publications including BBC and TIOL.

He complained, “In the Budget 2010-11 the parts ,components and assemblies of Automobiles appearing in Notification No. 49/2008-CE(N.T.) dated 24.12.2008 has been replaced by parts ,components and assemblies of Vehicles vide Notification No 9/2010 CE(NT) 27-02-2010. It is felt that the change has been made in the Notification by specifying the vehicles of Chapter Heading 87 with the sole intention to provide undue benefit to construction equipment vehicle manufacturers Viz. JCB India Ltd, L&T - CASE EQUIPMENT PRIVATE LIMITED, Volvo India Limited, Telco Construction Equipment Company Limited (TELCON).,EScort and others manufacturing the vehicles classified under Chapter 84 of the Central Excise Tariff Act 5 of 1986 and would result in a loss to the Govt. Exchequer estimated to the tune of 1500 crore rupees(APX.) which by any stretch of imagination is not a meagre amount.

Now after the 2011 amendments another citizen by name Yogendra Pali has written to the President of India with a copy to us stating,

Cases involving huge amount of revenue have been registered against the parties mentioned hereunder and show cause notices for recovery of Govt revenue have been issued in respect of parts components and assemblies of automobiles.

1) M/s Terex Vectra Equipment (P) Ltd., Plot No. 22, Udyog Vihar, Greater Noida, P.O.-Surajpur, Gautam Budha Nagar (U.P.)-201306 case registered by THE COMMISSIONER,CUSTOMS, CENTRAL EXCISE & SERVICE TAX,C-56/42, SECTOR-62, NOIDA on dated 06/11/2009

2)Telco Construction Equipment Co. Ltd., SPARE PARTS DEPARTMENT ,Telcon General Office, C/o Telcon Premises, P O: Telco GM”s Post office , Admistrative Block-1 Jamshedpur-831010 , case registered by DGCEI, kolkata on dt 19/01/2010

3) JCB case registered by DGCEI PUNE on dt 08.07.2009

4) Action Construction Equipment Ltd case registered by THE COMMISSIONER OF CENTRAL EXCISE DELHI –IV,NEW CGO COMPLEX, NH-IV, FARIDABAD on dt on 01.12.2009

5) M/s L & T Case Equipments Pvt Ltd , - case registered BY THE COMMISSIONER, CUSTOMS, CENTRAL EXCISE & SERVICE. Tax, Indore on dt-17.12.2009

He has also enclosed copies of the above Show Cause Notices and further says,

The retrospective amendment in the third schedule have been made effective from 27-02-2010 and 29-04-2010 with the sole motive to extend undue benefit to the parties/manufacturers mentioned above to escape the duty liability. The mischief done needs to be addressed immediately and the retrospective amendment must be given effect from 01-06-2006.

Any way these complaints have no meaning now as there was no real amendment and maybe we will have to wait for another year for that retrospective amendment.

Tariff Value reduced for Brass Scrap

GOVERNMENT has reduced the tariff values of Brass Scrap (all grades) from USD 4278 to USD 4272. There is no change in the value of other items.

Notification No. 33/2011-CUS (N.T.), Dated : April 29, 2011

CBDT Chairman Hurt and Pained at pathetic condition in Moffusil offices

WITH the intention of getting a first- hand feel of the conditions prevailing in our Muffusil offices, the Chairman visited some of these offices & interacted with colleagues posted there. He was hurt & pained to find that:

++ The officers & staff were neither aware, nor made aware, about our official website – http://www.irsofficersonline.gov.in & the Messages from the Chairman 's Desk;

++ They were ignorant about the CBDT's advice to issue all the refunds by April 20 2011. Paper returns were not even segregated into refund & non-refund cases;

++ CCIT & CCIT(CCA) apparently had not visited these offices;

++ There was a total disconnect between the CCIT & the staff;

++ Some of the stations were not provided with operational vehicles allotted by the CBDT;

++ Offices were cluttered with old / obsolete furniture & typewriters, dilapidated desert coolers, broken tube lights - all covered with thick layer of dust; &

++ Basic amenities like water coolers were not functioning.

The CBDT does not approve such apathy & indifference & advises all the CCITs & CITs to:

++ Regularly visit all their Mofussil offices,

++ Establish a connect with the officers & staff posted there, motivate them & provide them with the best of office conditions to enable them to give their very best to the nation,

++ Create awareness about the Deptt‘s website irsofficersonline &

++ Thus assume leadership role.

Four years ago, I had accompanied a US based NRI to the North Block. Right outside the CBDT Chairman's office were dumped old unusable furniture. I told my American friend that the man who sits in that office facing the dumped furniture is the equivalent of their dreaded IRS Chief!

Please also see Junk Furniture in Government offices – why not dispose them? in DDT 1211 - 08.10.2009

From the desk of the Chairman, CBDT S. No. 38/April 28, 2011

Cadre Restructuring Proposals ion CBDT

The Chairman is personally pursuing the proposal.

Revenue Can Rejoice – Wins two Larger Bench Cases in CESTAT

MANY departmental officers feel that they don't get a fair deal in the Tribunals and Courts, which is not really true. If they lose cases, it is because of the pathetic unsustainable orders in original. In fact many judges feel they have a responsibility to protect Revenue, which is also not a correct attitude.

In two recent decisions, Larger Benches of the CESTAT held that on finalization of provisional assessments under Central Excise, adjustment of excess payment against short payment can be only after passing the test of unjust enrichment for the excess payment and in a Service Tax case, held that Stevedores are liable for service tax under port service – Authorization under Major Port Trusts Act is not required to attract service tax.

We will bring you both the cases tomorrow.

Jurisprudentiol – Tuesday's cases

Income Tax

Whether slump sale without separately fixing price of different items comes within purview of 'sale' or 'otherwise transfer' of plant and machinery as mentioned in Sec 32A(5) - HC

THE issues before the High Court are - Whether slump sale without separately fixing the price of different items comes within the purview of “sale” or “otherwise transfer” of the plant and machinery as mentioned in Section 32A(5) of the Act and whether having regard to the object and scheme of Section 32A(5) of the Act if the plant & machinery is not separately transferred out of the business but such plant & machinery remains fully in the business or the undertaking which has been transferred, the provisions of Section 32A(5) is applicable. And the verdict goes against the assessee.

Service Tax

Service tax on Port Services

LARGER Bench rules that there is no requirement to refer to Major Port Trusts Act for provisions other than clause (q) of Section (2) of the Major Port Trusts Act, 1963 or clause (4) of Section (3) of the Indian Ports Act, 1908 – Stevedores are liable for service tax under port service – Authorization under Major Port Trusts Act is not required to attract service tax.

Central Excise

Finalisation of Provisional assessment - adjustment of excess duty paid against short payment - only subject to unjust enrichment

SUCH excess amount can certainly be adjusted towards any other duty liability of such assessee under the Excise Act, 1944 and Rules made thereunder, however, such adjustments are subject to the applicability of the principle of unjust enrichment. Therefore, before grant of adjustment, the authority will have to ascertain whether such excess amount is to be actually refunded to the assessee or is liable either wholly or partly to be credited to the account of consumer benefit fund and only thereafter make an order of adjustment to the extent the amount is found to be actually refundable and not liable to be credited to the account of consumer benefit fund.

See our columns Tomorrow for the judgements

Until Tomorrow with 1600 th DDT

Have a Nice Day.

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