DDT 1318 - 15.03.2010 observed, “FOR setting up an EOU in India, you need two things. One is LOP from the Development Commissioner and the other is a Master's in Mathematics from a reputed University. The former is required for carrying the operations as EOU and the latter for computing the duties payable on DTA clearances and the CENVAT Credit against such clearances ”.

The controversy on third time cess for DTA clearances from EOU has been entertaining the litigation world for quite some time. The Tribunal in the Sarla Performance Fibres case 2010 -TIOL-408-CESTAT-AHM clearly held that education cess was not required to be paid a third time. When even the Central Excise Department has no respect for higher judicial orders, can we expect the CAG to have any respect for judicial pronouncements?

The CAG has raised an objection that the cess is required to collected thrice and the Ministry has accepted this objection.

A letter from the DG, Export Promotion says,

“The issue of levy of education cess on the goods cleared into DTA by EOUs has been examined by this office in consultation with TRU. TRU has also ratified that education cess as duty of excise will be charged thrice on the goods manufactured and cleared by EOU (Copyof calculation chart enclosed). Ministry has been accepting the DAPs pertaining to short levy of education cess. Hence, Ministry can not take dual stand on a single issue .”

The Calculation Chart explains it as:

Education cess is payable on normal excise duty as part of CVD under Section 3(1) of Customs Tariff Act, 1975 and again on the Customs duty (BCD+CVD) as in a case of direct import. Hence, this education cesses on aggregate of duty of customs [{BCD+ (CVD+Edu.Cess)+Edu.Cess)+Edu.Cess] is technically and legally chargeable.

Taking into consideration the above, an illustration of duties payable by an EOU vis-à-vis duty payable on direct imports is as under:

The above calculation is without consideration of any other duty of excise or duty of customs or any sum chargeable on such goods under any other law for the time being in force, as an addition to, and the same manner as, a duty of excise or customs. Any other duty of excise or customs leviable shall also be included for calculation of education cess in the manner stipulated under section 93 & 94 of the Finance Act, 2004 and section 128 & 129 of finance Act, 2007.

Similar would be case for charging Additional Duty of Excise and National Calamity Contingent Duty of Excise on the commodity under purview of these duties like HSD, petroleum oils, crude, tobacco products etc. EOUs would require paying these duties one time extra to the duty paid on imports.

DDT 1329 - 31.03.2010 had requested the Board to clarify the issue as field officers will have no respect for CESTAT. Now it is once again proved that even the Board does not have any. There is not even a mention of the Sarla case in the DGEP letter!

Also please see Education cess payable by EoUs on DTA sale : Will this Budget clarify?

DGEP Letter No. DGEP/DAP/A45(09-10)/2010, Dated: December 27, 2010

Sarla vs CAG-What happens now?

NOW that Board has accepted the CAG objection and virtually ignored the CESTAT decision in Sarla Performance Fibres case 2010 -TIOL-408-CESTAT-AHM, what will happen in the field?

Show Cause Notices will go to every EOU having DTA clearance. The first adjudicating authority will straight away confirm the demand as they are bound by Board's acceptance of the CAG objection. Energetic Commissioner (Appeals) will require pre-deposit to hear the appeal. Somehow take the case to the Tribunal. Tribunal is not bound by Board and CAG. It has to go by precedent and as of now there is no judgement contrary to the Sarla case and so Tribunal is bound to rule that third time cess is not payable.

That will take litigation back to the adjudicating authority - he will use every rule in the book to reject refund. He will shout “unjust enrichment”. Litigation may go on for another four years!

Who benefits from all this mockery of the legal system? The lawyer/consultant of course. But for the benevolent Board, 90 per cent of the consultants in this country would have been out of business! I often feel guilty trying to bite the hand that feeds me.

Department had knowledge - Extended Period of Limitation not applicable - Supreme Court

Whether extended period applicable in a case of Misstatement, suppression, etc, at a stage prior to importation of goods - Supreme Court keeps issue open

IN Commissioner of Customs vs Shah Alloys Ltd -2010-TIOL-543-HC-AHM-CUS, the Gujarat High Court held that, “ the suppression, wilful mis-statement etc. are alleged at the stage of issuance of licences which is prior to importing of the goods in question. In the circumstances, in view of the definition of ‘importer' any suppression, collusion or wilful mis-statement at a stage prior to importation of the goods in question, would not fall within the ambit of the proviso to sub-section (1) of section 28 inasmuch as at that stage, the person who applies for the licence cannot be said to be an importer within the meaning of Section 2(26) of the Act. In the circumstances, in connection with alleged suppression, wilful misstatement made at the stage of issuance of licences, prior to importing the goods, the proviso to sub-section (1) of section 28 could not have been invoked. Hence, the entire proceeding right from the stage of issuance of show cause notice would stand vitiated ”.

On appeal by the Commissioner, the Supreme Court held, “ Special leave petition is dismissed both on the ground of delay as also on merits, as it is clearly established from the records that the petitioner had knowledge and therefore provision of extension of the period of limitation would not be applicable in the facts and circumstances of the present case. However the question of law with regard to interpretation of Section 2(26) read with Section 28 of the Customs Act, 1962, is kept open for consideration in an appropriate case”.

Please CLICK HERE for the Supreme Court Order

UP Trade Tax - Interest - Once it has been confirmed that tax is payable under the Act, same becomes payable from date when it was due and not from date when judicial verdict was pronounced - Supreme Court

THE Supreme Court yesterday in a Sales Tax caseobserved, “The appellant had taken the chance to get a judicial verdict on the said issue. Once it has been confirmed that the tax is payable under the Act, the same becomes payable from the date when it was due and not from the date when the judicial verdict was pronounced (unless and until, in a case, the court specifies a particular date from which it shall be payable). Thus, once it has been confirmed by the Court that the tax is payable under the Act it would be covered within the definition of the term ¶the tax admittedly payable¶ as defined in the explanation to section 8 (1) and, in case, the tax had not been paid then the same becomes payable along with interest as mentioned in section 8 (1) of the Act.”

We bring you this order today. Please see Breaking News

Income Tax - ¶Zero Delay Regime¶ in matter of filing of appeals/SLPs

WITH a view to ensure filing of appeals/SLPs within the period prescribed, CBDT has issued fresh instructions in supersession of all earlier instructions on the subject.

++ Time Lines have been prescribed for processing proposals at different levels.

++ Responsibility: The CCIT and CIT concerned shall ensure timely processing of proposals and their submission to the Directorate of L&R as per the timelines.

++ Institutional Mechanism: The CCIT (CCA)/CCIT, having jurisdiction over the station having Bench of the High Court, shall ensure a proper institutional mechanism for timely dissemination of certified/downloaded copy of High Court's order/judgment, whichever is available first, to CsIT having jurisdiction over respective cases.

++ Quality of SLP Proposals: The quality of proposal sent by the Commissioner, is extremely important for efficient and effective litigation management in the Department. It must be noted that appeal to the High Court and the Supreme Court can be filed only on ‘Substantial Questions of Law'.

++ Monitoring Compliance of this Instruction: The DGIT (L&R) shall send a quarterly report to the Member (A&J)

CBDT INSTRUCTION NO. 4/2011 [F. NO. 279/MISC./M-20/2011-ITJ], Dated: March 09, 2011.

Jurisprudentiol - Thursday's cases

Customs

Export Valuation - The initial burden to establish that value mentioned by exporter is incorrect lies on Revenue. Neither Commissioner nor CESTAT dealt with the matter as per procedure prescribed under Act: Supreme Court

IT is settled that the procedure prescribed under Section 14(1) of the Act and particularized in Rule 4 of the 1988 Rules has to be adopted to determine the value of goods entered for exports, irrespective of the fact whether any duty is leviable or not. ……… At the threshold, instead of first determining the value of the goods on the basis of contemporaneous exports of identical goods, the Revenue erroneously resorted to a market enquiry.

Income Tax

Whether where notice u/s 148 is rightly issued but not served on assessee due to address-change and a copy of same is given before passing reassessment order but no objection raised, assessment made under Sec 147 can still be treated as bad in law - NO, says Delhi High Court

THE issue before the High Court is - Whether where the notice u/s 148 is rightly issued but is not served on the assessee due to the address change, and a copy of the same is given before passing the assessment order and no objection is raised by the assessee during the reassessment proceedings regarding non-service of notice u/s 148, the assessment made u/s 147/143(3) can still be treated as bad in law. NO is the High Court's answer.

Central Excise

Central Excise - Cess on Crude Petroleum -OID Cess to be collected on the basis of receipt in refinery - In case of difference, entitled to refund - No unjust enrichment: CESTAT

THE question of unjust enrichment does not arise since as per the MOU, cess is not supposed to be passed on and in this case, the quantity received was to be finalized by mutual understanding between the two parties and therefore neither of the parties to the dispute can be said to have passed on the liability. Therefore, the initial burden of proving that there was no unjust enrichment in the transaction can be said to have been discharged by the respondent and it for the department to show that there was unjust enrichment.

See our columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a Nice Time.

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