A Netizen sent us this:

If anyone takes a look at the interpretation of provisions of Rule 8(3A) of the Central Excise Rules, 2002 by field formations and the clarification issued by CBEC vide Cir 962 dt. 28.03.12, the proceedings initiated by the department against assesses who made short payment of duty of few hundreds of rupees is more severe than for an assessee evading lakhs of rupees of duty. This short-sightedness and wrong interpretation of provisions of Rule 8 (3A) of CE rules has led to initiation of proceedings under Rule 8 (3A).

Let us take an illustration

The illustration though hypothetical, in reality there are instances where the officers in the field formations have been issuing notices under Rule 8 (3A) rejecting utilization of cenvat and demanding huge amounts in PLA, even in cases where inadvertent short payment of duty is less than hundred rupees, which is found during scrutiny of ER-1. This is because the adjudicating officers failed to appreciate the meaning and intention of Rule 8 (3A) in proper perspective. If Rule 8 is read with Rule 6, it would convey that non-payment/short payment of duty assessed and declared in ER-1 should only be considered as default under Rule 8 and Rule 8 (3A) to attract the consequences mentioned under Rule 8 (3A). Any other short payment noticed due to erroneous assessment of duty pertaining to a month (either due to wrong calculation of duty or irregular utilization of credit) should be dealt in terms of Section 11A of CEA. Otherwise, the Rule 8 (3A) would be like a Damocles sword hanging on the assessees as the department may interpret any underassessment / inadvertent short payment found out during scrutiny of ER-1 as default payment, where the consequences are very harsh and perhaps the assesses may get relief only in CESTAT. The recent draconian circular may add to their woes, as attachment proceedings may be initiated against them, though in fact there was no short payment/non payment of duty in such cases (as the assesses have already paid duty through CENVAT, which the department rejects by invoking Rule 8 (3A). Whereas the assesses who intentionally short paid can escape with 1% penalty and he can happily utilize the credit which is earned subsequent to the period in which non-payment occurred, as per the clarification issued by CBEC in Cir. 962 dt. 28.03.2012. As discussed in the illustration above, the assesses who have short paid duty inadvertently and detected during the scrutiny of ER-1s are in for proceedings under Rule 8 (3A) and would be penalized heavily (by demanding duty in PLA and imposition of penalty under Rule 25).

Certainly, law cannot be so illogical to punish the inadvertency more severely than intent. But litigation arises due to improper drafting of the Rule 8 (3A). Hope the CBEC will have fresh look into the draconian rule to give relief to assessees who made short payment unintentionally due to clerical mistake.

Income Tax - TDS - TDS Return under digital signature optional - New TDS Forms

CBDT has amended Income-tax Rules, 1962:

TDS Statement electronically under digital signature is made optional.

A new Form 26B is prescribed to claim TDS refund.

Several TDS Forms have been substituted with new forms.

CBDT Notification No. 11/2013 [F.NO.142/31/2012-SO(TPL)]/SO 410(E)Dated: February 19, 2013

ICD Baddi Notified

INLAND Container Depot at Baddi - District Solan in Himachal Pradesh has been notified as an ICD for the purpose of Unloading of imported goods and loading of export goods. Notification No. 12/97-Customs (N.T.), dated the 2nd April, 1997 is amended.

Notification No. 22/2013 - Cus (NT) Dated: February 20, 2013

CBI arrests CE Superintendent for Bribe of Rs. 14,500

THE Central Bureau of Investigation has arrested a Superintendent of Central Excise, Ahmedabad for demanding & accepting a bribe of Rs. 14,500/- from the Complainant.

CBI registered a case against the Superintendent of Central Excise working under Ahmedabad-I Commissionerate, Ahmedabad on the allegations of demanding a bribe of Rs. 14,500/- from the complainant for processing the Monthly Returns of his company and documents for export filing during last seven months. The Superintendent has allegedly asked the complainant to pay bribe of Rs.1,000/- for processing of each Monthly Return and bribe of Rs.500/- for each document of export filing in future also. CBI laid a trap and the Superintendent was caught red handed while demanding and accepting bribe of Rs. 14,500/- from the complainant at his office.

The accused Superintendent is now in judicial custody.

Act of Commissioner (A) shows that there is lack of knowledge of law as to how to deal with appeals filed

STRANGE are the ways in which the Commissioner(Appeals) disposes of stay applications.

In the present case, Commissioner(A) during the personal hearing ¶orally¶ instructed the appellant to make pre-deposit of some adjudged amounts involved in the appeal proceeding.

Initially the appellant thought that the ¶oral¶ directions would be followed by some written order but when that did not come, the appellant himself wrote to the Commissioner(A) for a ¶speaking order¶. Pat came the reply from the Commissioner (A) - he dismissed the appeals for non-compliance of the “oral directions” of pre-deposit allegedly made by him in terms of section 35F of the CEA, 1944.

The appellant is before the CESTAT and prays that the matter be remanded.

The Bench observed -

¶4. The act of the learned Commissioner (Appeals) shows that there is a lack of knowledge of law as to how to deal with the appeals filed before him. As there is no speaking order for pre-deposit, the impugned order does not deserve any merit. Therefore, the matter needs re-examination at the end of the Commissioner (Appeals) for deciding the stay application. The Commissioner (Appeals) is directed to pass a speaking order on merits while dealing with stay application. Thereafter, the Commissioner (Appeals) shall decide the appeal on merits.¶

With these instructions, the CESTAT set aside the impugned order and the appeals were allowed by way of remand.

It was also very thoughtful on the part of the Bench to make the following mention -

¶6. During pendency of these appeals before the Commissioner (Appeals) for consideration of stay applications, no coercive steps to be taken against the appellant.¶

(See 2013-TIOL- 342-CESTAT-MUM)

Jurisprudentiol – Friday's cases

Service Tax

ST - MD of appellant company also performed job of MD of another company by devoting 20% of his time and for which he was compensated - If at all any advisory activity was undertaken by said person, demand for Service Tax can be made only on him and not on appellant company - ST demand set aside and appeal allowed: CESTAT

THE appellant had employed Shri XXX as a Managing Director (MD). Shri XXX was also employed as MD of M/s Brembo Brakes India Pvt. Ltd.Shri XXX was required to devote 20% of his time to the work of M/s Brembo Brakes India Ltd. and for the remaining 80% of the time he was required to work for the appellants. M/s Brembo Brakes India Ltd. compensated Shri XXX for his work as MD and remuneration of Shri XXX was routed through the appellant and the payment received was credited to the account of Shri XXX without retaining any part thereof.

This flow of money was detected by the department and a view was taken that the appellant rendered Management & Consultancy Services to M/s Brembo Brakes India Ltd. by lending the services of Shri XXX.

Income Tax

Whether for purpose of transfer of case u/s 127(2), mere mention of reason 'for effective and coordinated investigation' is neither vague nor insufficient - YES: HC

THE assessees were members of the same family/group companies. Search operations were carried out by the income tax authorities at their premises. Assessment proceedings arising out of such search were pending before the respective AO who were all authorities situated at Bhavnagar. The CIT, Ahmedabad passed an order u/s 127(2) transferring such pending assessments from Bhavnagar to Ahmedabad. Such orders were challenged by the petitioners before this Court. Such petitions were disposed on the assurance of the Revenue that CIT shall withdraw such order. The CIT transferred all the cases to Assistant CIT, Ahmedabad.

Central Excise

Provisions of rule 9(1)(b) of CCR, 2004 does not apply to Supplementary Invoices issued in August, 2008 in respect of Service Tax paid - applicant has made case for total waiver of dues - Pre-deposit waived and stay granted: CESTAT

THE applicant received Input service in the month of August, 2008 but the service provider did not pay the Service Tax due. Later on, the service provider paid the service tax and issued a supplementary invoice in this regard. The service tax was reimbursed by the applicant and they took the CENVAT credit of the same. It is the case of the Revenue that the credit so availed is improper in terms of rule 9(1)(b) of the CCR, 2004 which prohibits availment of credit on the basis of supplementary invoices if the duty/tax has been paid (on being pointed out) and which was recoverable on account of non-levy/short-levy on the ground of suppression, willful misstatement etc.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

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