IT'S a great Day for DDT. For the last six years, DDT has been relentlessly pointing out the fact that the Government had been with routine regularity extending the validity of dead anti dumping notifications and we had been questioning as to what would be the position during the period between lapsing of an anti dumping notification and its resurrection. We have been told by several Customs officers that despite lapsing of the notifications, they would collect the anti dumping duty, on the assumption that Government would resurrect them and at that point of time, it would be impossible to collect the differential duty. DDT is extremely happy to report that Board has reacted favourably.

The latest Board Circular states that on a plain reading of Section 9A (5) of the Customs Act, 1975, it is evident that definitive/final anti-dumping duty can be collected only for a period of five years from the date of its imposition.

Generally, the anti dumping levy notified in pursuance of final findings of the Director General (AD) is effective from the date of imposition of provisional duty and therefore the period of five years is to be computed from such date.

Collection beyond that period is permissible only when the said levy is extended by a notification either for further period of five years (in pursuance of the final findings of the Designated Authority in a Sun Set Review) or for one year (during the pendency of Sun Set Review).

Thus, a definitive/final anti-dumping duty can be collected beyond the stipulated period only when a notification extending the levy has been issued, before the expiry of the parent notification.

Unless such revalidation or extension is carried out by a fresh notification, the collection of final anti-dumping duty should cease on the completion of five years.

Where the findings in a review are notified after the lapse of the parent notification, the notification in such cases would be effective prospectively from the date of issue of such notification.

Board deserves all praise for this very logical and reasonable clarification. So, now for the failure of the Board, the importer will not be punished.

CBEC Circular No. 28/2011-Cus, Dated: July 8, 2011

Anti Dumping on Sodium Tripoly Phosphate - Resurrection Continues

WHILE the above Circular was being issued, on the same day another Section of the Board issued yet another notification bringing back to life a dead anti dumping notification.

Provisional anti dumping duty was imposed on Sodium Tripoly Phosphate originating in, or exported from, People's Republic of China, by Notification No. 96/2010-Cus dated 21.09.2010.

This Notification specifically mentioned that, “The anti-dumping duty imposed under this notification shall be effective upto and inclusive of the 20 th March 2011.

So this duty was not leviable with effect from 21.03.2011. But now the Government has come up with a new notification imposing definitive anti dumping duty on the product for a period of five years with effect from the date of imposition of provisional anti-dumping duty, that is, the 21st September 2010.

What is the position for the imports made from 21.03.2011 to 07.07.2011? According to the Board Circular above, no duty is leviable for this period or is the circular not applicable for provisional duty converted to definitive duty – even after expiry of the provisional duty?

Notification No. 58/2011-Cus, Dated: July 7, 2011

Customs Duty Exemption for Free Goods

AS per S. No. 8 of the table to Notification No. 148/1994-Cus dated 13.07.1994, “Goods, gifted free of cost under a bilateral agreement between the Government of India and a Foreign Government” are exempted from Customs duties. Now this is amended to read as, “Goods, gifted or supplied free of cost under a bilateral agreement between the Government of India and a Foreign Government”

Notification No. 56/2011-Cus, Dated: July 7, 2011

Tighten your belts - Fiscal Discipline needed - Expenditure Secretary

EXPENDITURE Secretary Sumit Bose has written to all Secretaries to the Government of India to ensure a deep cut in their expenditure so that more funds are available for development.

Seminars and workshops are to be restricted and there should be a ten per cent cut in Budget. No meetings and seminars in five star hotels; No more buying of vehicles except for the defence forces; Foreign travel is to be cut to the minimum.

THERE WILL BE A TOTAL BAN ON CREATION OF POSTS. (What will happen to all those posts to be created in the Revenue Department under cadre review?)

These instructions are routinely issued every year and nobody really takes them seriously.

Department of Expenditure O.M. No. 7(1)/E. Coord/2011, Dated: July 11, 2011

Filing of Balance Sheet and Profit and Loss Account in extensible Business Reporting Language (XBRL) mode

MINISTRY of Corporate Affairs informs that the filing on MCA 21 in the XBRL mode will be effective in respect of financial statements closing on or after 31.03.2011 instead of the year 2011 - 12. Further: -

++ Besides Signing by signatories as specified u/s 215 of the Companies Act, 1956, the Statutory Auditor has to certify the financial statements prepared in XBRL mode for filing on MCA 21 portal.

++ Phase-1 class of companies as per Circular 9/2011 dated 31.03.2011 and later exempted from XBRL filing (under Power sector, Insurance sector, NBFC and Banking sector) who are unable to file their financial statements would be exempted from additional fee due to delay in filing up to 30.09.2011.

Ministry of Corporate Affairs Circular No. 43/2011, Dated: July 07, 2011

Integration of DIN and DPIN

THE Ministry of Corporate Affairs has been issuing two separate identification numbers as DIN to an individual for becoming a director of a company under Companies Act, 1956 and DPIN for a designated partner in a Limited Liability Partnership under Limited Liability Partnership (LLP) Act, 2008.

To avoid this duplicity and to give ease to the stakeholders, the Ministry has decided to issue only one identification number to an individual for both the purposes.

Therefore, the Ministry has integrated the Director's Identification Number (DIN) issued under Companies Act, 1956 with Designated Partnership Identification Number (DPIN) issued under Limited Liability Partnership (LLP) Act, 2008 with effect from 9.7.2011.

Ministry of Corporate Affairs Circular No. 44/2011, Dated: July 08, 2011

Name Availability Guidelines 2011

THE Ministry of Corporate Affairs has issued new guidelines 2011 for approving names of companies.

++ No company is to be registered with undesirable name;

++ If there is a company in existence by the name of ¶Builders and Contractors Limited¶, the name ¶Contractors and Builders Limited¶ should not be allowed;

++ Exact Hindi translation of the name of an existing company in English especially an existing company with a reputation. For example, Hindustan Steel Industries Ltd. will not be allowed if there exists a company with name 'Hindustan Ispat Udyog Limited';

++ Abbreviated name such as 'BERD limited' or '23K limited' cannot be given to a new company. However the companies well known in their respective field by abbreviated names are allowed to change their names to abbreviation of their existing name.

++ If the proposed name includes the word ¶State¶, the same shall be allowed only in case the company is a government company. Also, if the proposed name is containing only the name of a continent, country, state, city such as Asia limited, Germany Limited, Haryana Limited, Mysore Limited, the same shall not be allowed;

++ If the proposed name contains any word or expression which is likely to give the impression that the company is in any way connected with, or having the patronage of, the Central Government, any State Government, or any local authority, corporation or body constituted by the Central or any State Government under any law for the time in force, it will not be allowed unless the previous approval of Central Government has been obtained for the use of any such word or expression;

Ministry of Corporate Affairs Circular No. 45/2011, Dated: July 08, 2011

Service Tax - BAS - Promoting Real Estate in the Air - Jetlite Case in SC

THIS case, as they say, had a chequered history – in a short span of time. It all started with a Show Cause Notice dated 28.10.2008. The issue was displaying logo of Sahara Corporation in the Boarding Pass of the then Sahara Airlines, which later became JETLITE. The Department was of the view that this was Business Auxiliary Service and tax was payable. The learned Commissioner confirmed the demand of about Rs. 129 Crores with an equal amount of penalty with attendant interest.

On appeal to the tribunal, the Tribunal ordered pre-deposit of Rs. 100 Crores - 2010-TIOL-854-CESTAT-DEL.

Naturally, the assessee rushed to the High Court. The High Court by an order dated 20.08.2010 directed payment of cash of Rs. 60 Crores and a bank guarantee of Rs. 10 Crores and directed the Tribunal to decide the appeal by the end of November. The assessee appealed to the Supreme Court, but did not get any relief.

The Tribunal finally decided the appeal on 20.12.2010, holding that no Service Tax was payable. - 2010-TIOL-1715-CESTAT-DEL

Now the revenue has taken this high value high rated case to the Supreme Court.

Yesterday the Supreme Court adjourned the case for two weeks for Revenue to decide whether the appeal lies to the High Court or Supreme Court.

Railway Minister - Then and Now

IN 1956, Lal Bahdur Shastry resigned from his post as Railway minister accepting moral and constitutional responsibility for a rail accident. While speaking in Parliament on the incident, Nehru stated that he was accepting the resignation because it would set an example in constitutional propriety and not because Shastri was in any way responsible for the accident.

Today it is very difficult to get rid of a minister accused with the worst of crimes. Many of them are going straight from their ministerial bungalows into the Tihar jail.

But the height of irresponsible behaviour was when we witnessed the MOS in the Rail Ministry Mukul Roy refusing to visit an accident site as, “I am not the railway minister, the Prime Minister is”.

And more pathetic is the affairs of the Rail Board where the crucial post of Member Traffic is vacant! And so are two other posts.

Jurisprudentiol – Wednesday's cases

Customs

SCN for recovery of duty can be issued even without revising assessment: CESTAT

IN Jain Shudh Vanaspati Ltd , case the Supreme Court had held that even subsequent to clearance of goods under Section 47 of the Customs Act, a show-cause notice could be issued under Section 28(1) within the prescribed period of time reckoned from the relevant date for the purpose of recovery of customs duty not-levied, short-levied, not-paid, short-paid etc, even without revising the assessment of the goods .

Income Tax

Whether, for levy of FBT, meaning of word 'construction' in Sec 115WC is restrictive and includes only civil construction within its realm - NO, rules ITAT

ASSESSEE Company is engaged in the business of manufacturing of specialized equipment of solid and waste and a liquid waste treatment for industries and communities and these equipments were known as Twin Wire Belt Filter Press for Sludge Management - Major portion of the assessee's activities included construction of civil structures - AO while framing the assessment rejected the submission of the assessee for levyng FBT @ 5% and levied 20% rate. CIT(A) affirmed the order of the AO.

Service Tax

Mobilising deposits, debentures and procuring land - BAS and Real Estate services - Pre-deposit of Rs. 34.2 Crores ordered out of a demand of Rs. 180.73 Crores: CESTAT

THE applicants are providing the services of mobilising deposits for their principal and the said depositor is having an option either to withdraw the maturity value after specified period of time or the depositor can purchase immovable property or can purchase goods or avail the services provided by the SICCL or by the other group companies. The applicants have received a commission on the total deposits mobilised by them irrespective of the fact whether at the time of maturity the depositors purchased immovable property or utilised their deposits otherwise. The whole demand has been confirmed on the basis of an agreement between the applicants and the SICCL.

See our columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a Nice Day.