TIOL-DDT 1967
22.10.2012
Monday

PRIOR to 01.07.2012, confusion prevailed over the liability of service tax under Goods Transport Agency as far as transportation of goods to and from Jammu and Kashmir is concerned. In DDT 1393 02 07 2010, we asked, ¶How do we treat a goods transport agency transporting goods from Punjab to J&K ? Is it liable for service tax? What if the Truck starts in J&K and reached Delhi? What if the services are provided from outside J&K and received in J&K ? Are they liable to tax?¶

It seems the lawmakers have finally found a solution to the J&K problem, at least with regard to payment of service tax. As per Rule 10 of the POP Rules, the place of provision of service in respect of GTA service is the location of the person liable to pay service tax (i.e., consignor or consignee). As per the proviso to Rule 2(1)(d) of the Service Tax Rules, 1994, if the person liable to pay freight is located in non-taxable territory, then the liability is on the service provider. Based on these two Rules, various possibilities of service tax liability on GTA service are listed here:

From the above table, there can never be a tax liability on GTA whose place of business is located in non-taxable territory (ie J&K). Further, if a GTA located in Delhi undertakes the transportation of goods from Jammu to Kashmir, since the person liable to pay freight is located in a non-taxable territory, the liability is on the GTA located in Delhi.

Customs and Excise Duty Exemption on Machinery for LRSAM - Another Messed-Up Notification

MACHINERY, equipment, instruments, components, spares, jigs, fixtures, dies, tools, accessories, computer software, raw materials and consumables required for the Long Range Surface to Air Missile (LR-SAM) Programme of Ministry of Defence, were first exempted from excise duty by Notification No. 30/2007 -Cx dated 10.07.2007, by inserting a new Sl. No. 25 to the table in Notification No. 64/95-Central Excise, dated the 16th March, 1995. This was valid only till 31st May 2011.

As usual, the babus forgot all about this notification lapsing in May 2011. They woke up a little later and reintroduced this exemption by Notification No. 34/2011 - Central Excise, dated 19th July 2011 by inserting another Sl. No. 29 in the table to Notification No. 64/95-Central Excise, dated the 16th March 1995. And this was valid till 25th day of November 2011. Again, in November 2011, the experts in the Board forgot about this notification and they woke up and issued a notification in February 2012 inserting another Sl. No. 30 in Notification No. 64/95-Central Excise, with identical words and this new exemption was valid till 25th May 2012. As usual on (or before and after) 25th May 2012, they were sleeping.

They woke up again last week and issued a Notification inserting another Sl. No. 31 in Notification No. 64/95-Central Excise, with identical words and this new exemption is valid till 25th November 2012. We can be sure it will not be extended before 25th November 2012.

Now, the position is that in the table to the Notification No. 64/95-Central Excise, dated the 16th March 1995, there are four Sl. Numbers 25, 29, 30 and 31giving the same exemption and there was no exemption during the period, 01.06.2011 to 18.07.2011, 26.11.2011 to 08.02.2012 and 26.05.2012 to 17.10.2012.

Of course, there is consistency. The Customs Notification No. 39/1996 dated 23.7.1996 has been similarly messed up and now has the same exemption in Sl. Nos 32, 35, 38 and 39 of the table.

Was there no public interest in giving these exemptions during these drowsy periods? Maybe the Defence Ministry should remind the Revenue Department, at least a month before expiry of these notifications.

This issue has already reached the Tribunal and at least in two cases, Tribunal had granted stay.

1. 2011-TIOL-1653-CESTAT-BANG

2. 2010-TIOL-981-CESTAT-BANG

The Board should seriously consider job work for its notification manufacturing activity.

Notification No. 38/2012 CE, Dated: October 18, 2012 and Notification No. 57/2012 Cus, Dated: October 18, 2012

Discrepancies in Appeals filed in SC - CBEC wants Officers to be Trained

BOARD has found certain common discrepancies/ mistakes in appeals filed by the Department before Supreme Court.

(i) In case of party appeal, Vakalatnama is not sent immediately. In the absence of Vakalatnama, no advocate would appear before the Supreme Court if case is listed for any purpose.

(ii) Vakalatnama is signed by an officer not of the rank of Commissioner.

(iii) Vakalatnama, even when signed by the Commissioner, does not have his rubber stamp affixed.

(iv) Proper format of Vakalatnama is not used.

(v) Any Additional document has to be filed along with supporting Affidavit only.

(vi) The officers in the field formations do not update themselves by regular visits to the Departmental & Supreme Court websites.

(vii) The Department loses several cases on account of delay. Therefore, the officers are required to be sensitised to avoid delay at all cost. In fact, the Supreme Court has made very serious observation in this regard, in S.L.P. (C) No. 19986/2011 and 2007/2011 in the case of Director of I.T. International Taxation, Mumbai Vs. Citi Bank N.A (2012-TIOL-78-SC-IT). In this case, the Hon'ble Supreme Court has asked the Finance and Law Ministers to take appropriate action to avoid revenue leakage involving unexplained delay.

So, the Board wants Sensitisation cum Awareness Programme about Litigation matters pertaining to the Supreme Court to be initiated in each zone. The Directorate of Legal Affairs is being asked to take appropriate action to initiate training for the respective officers involved in preparation and filing of CA/SLP at the Zonal level. The officers concerned must attend such training and the schedule for organizing the same may be finalised immediately at the Zonal level, in consultations with the Directorate of Legal Affairs.

Please also see DDT 1946 20.09.2012 and DDT 1949 25.09.2012

CBEC Letter F. No.1080/19/DLA/TECH/12/748; Dated: September 19, 2012

FTP - Extension of Ban on Export of Edible Oils

EXPORT of edible oils was initially prohibited for a period of one year with effect from 17.03.2008 vide Notification No. 85 dated 17.03.2008, which was extended from time to time. Now the ban on export of edible oil is extended till further orders.

However, certain exemptions have been granted through various notifications issued from time to time namely

(a) export of Castor Oil

(b) export of coconut oil through Cochin Port

(c) Deemed export of edible oils (as input raw material) from DTA to 100% EOUs for production of non-edible goods to be exported

(d) export of oil produced out of minor forest produce even if edible, ITC(HS) Code 15159010, 15159020, 15159030, 15159040, 15179010 and 15219020.

These exemptions will continue.

In addition, export of edible oils in branded consumer packs of upto5 Kgs with ceiling of 20,000 tons is permitted for the 12 month period ending on 30.09.2013. Such exports can take place only through Custom EDI Ports.

DGFT Notification No. 24/(RE - 2012)/2009-2014, Dated: October 19, 2012

FTP - Dispensing with submission of physical copy of RCMC by the exporters

DGFT has amended the Para 2.64 of the Handbook of Procedures Vol I (RE 2012)/ 2009-14, in respect of RCMC (Registration-cum-Membership Certificate).

Details of RCMC would be made available (uploaded) by respective EPCs/Commodity Boards Development Authorities/other competent authorities. Accordingly, submission of physical copy of RCMC by the applicants will not be required. This will be with effect from 01/12/2012.

DGFT Public Notice No. 25/(RE - 2012)/2009-2014, Dated: October 19, 2012

FTP - SION for new product 'Aluminium Beverage Cans' Notified

DGFT has notified new SIONs in respect of the export product ¶Aluminium Beverage Cans¶ in the Engineering Product Group.

DGFT Public Notice No. 26/(RE - 2012)/2009-2014, Dated: October 19, 2012

FTP - Pre Shipment Inspection Agencies Appointed

DGFT has appointed five new Pre Shipment Inspection Agencies (PSIA) and widened the area of operation of 3 existing PSIAs.

DGFT Public Notice No. 27/(RE - 2012)/2009-2014, Dated: October 19, 2012

Jurisprudentiol – Tuesday's cases

Service Tax

Hiring of buses to State RTC - not rent-a-cab service - Pre-deposit waived and recovery stayed: CESTAT

FROM the terms and conditions of the agreements, it appears that the buses did not fit in the definition of ¶cab¶ under Section 65(20) and the transactions between the Corporation on the one hand and the appellants on the other are not to be considered as squarely falling within the ambit of ¶rent-a-cab¶ service. Certain factors emerging from the nature of transactions appear to be incompatible with the features of the rent-a-cab scheme. The buses were admittedly being operated as stage carriage under cover of stage carriage permits. The routes were allotted by the RTOs in accordance with the State Government's policy. The buses were plied on such routes with fixed timetable determined by the Corporation. The passengers had to pay fares at rates fixed by the State Government. These fares were collected by the Corporation. All these undisputed facts appear to converge to features of a public transport system. In the totality of all these facts and circumstances, the activities undertaken by the appellants were much more than mere hiring of buses to the Corporation and hence might not be covered by the definition of ¶rent-a-cab¶ service.

Income Tax

Whether before invoking provisions of Sec 179 against Director of a Pvt Company it is necessary for Revenue to establish that tax due cannot be recovered from company - YES: Gujarat HC

THE issues before the Bench are - Whether in order to invoke the provisions of section 179 against a director of a private limited company, the Department must first establish that tax dues from the company cannot be recovered; Whether under section 179 of the Act, the Department could only recover tax due from the director of a private limited company and not interest or penalty and Whether on the facts and in the circumstances of the case, the Department is not justified in seeking recovery of the dues against the petitioner on the ground that there was no gross negligence on part of the petitioner to which non recovery can be attributed. And the verdict goes in favour of the assessee.

Central Excise

Issuance of clarifications under Rule 31 of Central Excise Rules, 2002 by Commissioner - The petitioner has not been in position to show that petitioner has right to demand issuance of clarifications and that there is concomitant obligation on part of respondent to issue such clarifications: HC

THE Petitioner filed a writ petition by praying that the Court may be pleased to issue a writ of Mandamus to direct the respondent, to issue certain clarifications on their representations, in terms of provisions of Rule 31 of the Central Excise Rules, 2002.

++ The Petitioner submitted that the respondent has an obligation to issue such clarifications, as prayed for by the petitioner, under Section 37-B of the Central Excise Act, 1944 and also under Rule 31 of the Central Excise Rules, 2002.

See our columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a Nice Day.

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