TIOL-DDT 1963
16.10.2012
Tuesday

AFTER we carried the Stay order passed by the CESTAT, WZB in the case of Common Effluent Treatment Plant (2012-TIOL-1411-CESTAT-Mum) yesterday, we received a mail from a netizen who has a radically different view on the subject issue.

Rather than passing any judgment on the said conclusion arrived at by the netizen, we felt it prudent to carry the same and allow the readers to air their views -

This concerns the Stay order passed by the CESTAT in the case of CETP and as reported by you yesterday. Since the matter was posted for hearing on the 4th September, 2012, I do not know whether the final order has already been passed by now. Be that as it may, it is my humble view that the beneficial retrospective amendment carried by the Finance Act, 2012 should be construed to be meant only for the effluent treatment plant set up by the ¶association of dyeing units¶ and not all the industries per se .

My analysis titled ¶Dyeing¶ Effluents is as follows -

++ Extracts from a Case study -

Common Effluent Treatment Plant for Thane Belapur Maharashtra Industrial Development Cooperation- A Case Study [By Waskar V.G, Kore S.V and Kore V.S] M.Tech-II student, Assistant Professors at Department of Environment Science and Technology

1. Introduction

Trans Thane Creek (TTC) Area is one of the prestigious industrial belt in Asia comprising of 3500 industrial units covering various categories such as chemicals, pharmaceuticals, dyes, pigment manufacturing, petrochemical, electronics, textile processing, engineering etc. The wastewater from this industrial belt is collected and treated in a Common Effluent Treatment Plant (CETP) at Kopar Khairane - MIDC. The capacity of existing CETP is 12 MLD and 15 MLD which are in operation since January 1998 and 2006 respectively. The CETP is presently treating effluent to desired standard and achieving the disposal norms as specified by Maharashtra Pollution Control Board (MPCB) and also as per the Environment Protection Act 1996. The Infrastructure, Land, Effluent collection and disposal network is provided by Maharashtra Industrial Development and Corporation (MIDC).

++ Section 145 of the Finance Act, 2012 reads -

Validation of exemption given to club or association including cooperative societies in relation to project.

145. (1) The notification of the Government of India in the Ministry of Finance (Department of Revenue) number G.S.R. 566 (E), dated the 25th July, 2011, issued in exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994, granting exemption from the whole of service tax leviable under section 66 thereof, on the club or association service referred to in sub-clause (zzze) of clause (105) of section 65 of the said Act, provided by a club or an association including registered cooperative societies, in relation to the project, shall be deemed to have, and deemed always to have, for all purposes, validly come into force on and from the 16th day of June, 2005, at all material times. (32 of 1994)

(2) Refund shall be made of all such service tax which has been collected but which would not have been so collected as if the notification referred to in sub-section (1) had been in force at all material times.

(3) Notwithstanding anything contained in the Finance Act, 1994, an application for the claim of refund of service tax shall be made within six months from the date on which the Finance Bill, 2012 receives the assent of the President. (32 of 1994)

Explanation. - For the removal of doubts, it is hereby declared that,-

(i) project means common facility set-up for treatment and recycling of effluents and solid wastes, with financial assistance from the Central Government or a State Government;

(ii) the provisions of section 11B of the Central Excise Act, 1944, shall be applicable in case of refunds under this section. (1 of 1944)

++ Kindly take a look at the exemption notification 42/2011-ST dated 25.07.2011. It reads -

¶In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts club or association service referred to in sub-clause (zzze) of clause (105) of section 65 of the said Act, provided by an association of dyeing units in relation to the project, from the whole of service tax leviable thereon under section 66 of the Finance Act.

Explanation.- For the purposes of this notification, project means common facility set-up for treatment and recycling of effluents and solid waste discharged by dyeing units, with financial assistance from the central or state government.

++ By a notification 01/2012-ST, dated 17.03.2012, the following amendments were made to the aforesaid notification 42/2011-ST -

¶In the said notification,-

(i) for the words ¶of dyeing units¶, the words ¶,including registered cooperative societies,¶ shall be substituted;

(ii) in the Explanation, the words ¶discharged by dyeing units¶, shall be omitted.¶

++ This would mean that from 17.03.2012, the exemption cannot be restricted to the Common facility set up for treatment and recycling of effluents and solid waste discharged by dyeing units. Meaning to say, it is extended to all units which discharge effluents and solid waste. So, if the CETP was providing Club or Association services to members ¶other than dyeing units¶ and collecting charges this amount be subject to Service Tax for the period from 25.07.2011 to 16.03.2012.

++ And if this be so, since the retrospective amendment (w.e.f 16.06.2005) relates to the original notification dated 25.07.2011 and not its amended form, can it be argued that the retrospective exemption [for the period 16.06.2005 to 24.07.2011] should be restricted to those clubs or associations which provided common facility for treatment and recycling of effluents discharged by dyeing units ONLY & not to all UNITS. I feel that a simple addition of the words ¶as amended¶ while referring to the notification in the aforesaid section 145 of the Finance Act, 2012 would not have created such a furore or is it a storm in a teacup.¶

DDT requests netizens to respond.

CBEC Extends Last Date for filing ST-3 Return

FOR the last couple of weeks, we have been getting frantic mails and calls from perturbed assessees who were worried that they were not able to file the ST-3 returns as the ACES was not working. They were worried that they would be punished for the fault of the Government. We tried to reassure them that the Board would do something before the last date and they need not worry, but many feared they would be penalised. We brought the anxiety of the assessee to the notice of the Board.

Yesterday, the Board issued an order extending the date of filing the return for the period 1st April 2012 to 30th June 2012, from 25th October to 25th November 2012.

The order issued by the Board in terms of the powers conferred by rule 7(4) of the Service Tax Rules, 1994 lists the circumstances of special nature necessitating the extension as follows -

a) ACES will start releasing the return in Form ST3 in a quarterly format, shortly before the due date of 25th October, 2012.

b) This will result in all the assesses attempting to file their returns in a short time period, which may result in problems in the computer network and delay and inconvenience to the assesses.

Let us hope ACES will be put in PLACE(S) by that time.

CBEC Order No. 3/2012 in F.No.137/99/2011-Service Tax, Dated: October 15, 2012

ACES still FACES Many Problems

OCTOBER 15 was the last date for filing the return by the First Stage and Second Stage Dealer, but many dealers told us that they were not able to file the return and the ACES told them, ¶Uploaded XML structure is not valid, please verify the structure or log a complaint to service desk.¶ The complaint to ACES does not produce any result.

Similarly, the ER-8 for those who pay the 2% duty is yet another insurmountable in ACES. ACES does not recognise 2% duty. ACES told us three months ago that the problem would be resolved shortly. What could be shortly for the ACES?

Customs - Tariff Value of RBD Palmolein, Brass, Poppy Seeds, Gold and Silver

GOVERNMENT has changed the Tariff Values as follows.

Notification No. 94/2012-Cus.,(N. T.), Dated: October 15, 2012

FTP - 'Haats Off' to India Bangladesh Border Bazaars

DGFT has made arrangements for the operation of Border Haats across the border between India and Bangladesh:

The following commodities will be allowed to be traded in the Border Haats at Baliamari- Kalaichar and Lauwaghar -Balat:

i. Vegetables, food items, fruits, spices;

ii. Minor forest produce e.g. bamboo, bamboo grass, and broom stick but excluding timber;

iii. Products of cottage industries like Gamcha, Lungi etc;

iv. Small agriculture household implements e.g., dao, plough, axe, spade, chisel etc;

v. Garments, melamine products, processed food items, fruit juice, toiletries, cosmetics, plastic products, aluminum products, cookeries.

Vendors who are allowed to sell their products in the Border Haats shall be the residents of the area within five (5) km radius from the location of Border Haat. The vendees may offer immediate consumption items of snack foods/ juices as may be allowed by the Haat Management Committee.

The commodities will be allowed to be exchanged in the designated Border Haats in local currency and / or barter basis. Each individual will be allowed to purchase only as much of the commodities produced in Bangladesh/India, which are reasonable for bonafide personal/family consumption. Estimated value of such consumption shall not be more than respective local currency equivalent of USD 100 (One Hundred) for any particular day.

The regulations relating to the foreign exchange will be suspended in the designated Border Haats.

Haats are weekly rural bazaars that happen on a weekly basis across thousands of villages in India. We talk so much of FDI in retail and WalMart, but these Haats of India have more retail outlets than WalMart and they offer a variety that the best of WalMart stores can never dream of providing. With most rural people being regular visitors to Haats (including about 40% women), these Haats can if properly used, change the political and economic scenario of the country. And no WalMart can drive out these Haats.

DGFT Public Notice No. 23 (RE-2012)/2009-2014,.), Dated: October 15, 2012

Jurisprudentiol - Wednesday's cases

Service Tax

Activity undertaken by appellant of beneficiation/washing of raw coal at its coal washery is activity of mining which was introduced for purpose of Service Tax with effect from 1.6.07 and hence prior to said date no Service Tax was leviable on beneficiation under BAS - ST Demand of Rs.17.39 Crores set aside - appeals allowed with consequential relief: CESTAT

ACTIVITY of bringing coal to washery for undertaking the job of beneficiation is for oneself and not for any other person - said activity is so integrally connected with the activity of beneficiation of coal that the same cannot be segregated and it cannot be held that the same was a different and separate activity falling under the definition of cargo handling services.

Income Tax

Whether when comparable sale instances as on 01-04-1981 are available, same should be given priority for computing fair market value of a property as on that date - YES: ITAT

THE issues before the Bench are - Whether when comparable sale instances as on 01-04-1981 are available, the same should be given a priority for computing fair market value of a property as on that date; Whether in such a case recourse to reverse indexation method can be allowed ; Whether there is always an element of estimation and guess work involved in arriving at fair market value of properties as on 01-04-1981 - Whether AO can reject the valid sale instances available for computing fair market value, merely because it can have an effect of reducing the amount of capital gains tax. And the verdict partly goes in favour of the assessee.

Central Excise

Pre-deposit Vs Attachment of Property - Whether attachment of property should be lifted to facilitate payment of pre-deposit - Matter goes to Third Member - CESTAT

MEMBER (T) held that there is a danger that the order recorded by Member (Judicial) will only help the applicants to get the attached properties released and thereafter make no deposit at all and vanish. There was no undertaking during hearing that if attachment is lifted Rs.6 crores will be deposited. The order recorded by Member (Judicial) also does not put adequate conditions to ensure that on lifting of the attachment of all the four properties, Rs. 6 crores will be deposited. The sequence of events consequent to the order as recorded by Member (J) is likely to be release of properties, its alienation, no pre-deposit and then dismissal of the appeal for non-compliance with the order of pre-deposit. There should be safeguard against such a probable sequence of events detrimental to the interest of Revenue.

See our columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a Nice Day.

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