TIOL-DDT 2153
22.07.2013
Monday

AS per Section 86(6) of the Finance Act, 1994, Section 129A (6) of Customs Act and 35B (6) of Central Excise Act, the fee payable for appeal to CESTAT is

i. Rs. 1000 if the duty/tax, interest and penalty is five lakh rupees or less;

ii. Rs. 5000 if the duty/tax, interest and penalty is more than five lakh rupees but not exceeding fifty lakh rupees;

iii. Rs. 10,000 if the duty/tax, interest and penalty is more than fifty lakh rupees;

But what is the fee payable if the appeal relates to rejection of a refund claim? Here there is no amount of duty demanded or penalty imposed. This issue has been under dispute for more than two decades with different benches of the Tribunal holding different views.

The matter recently reached the Larger Bench of the CESTAT. The Larger Bench observed that Section 86(6) neither talks of refund /rebate nor there is any residuary clause in 86(6) to cover appeals other than the demand of service tax, interest and penalty. The Bench also noted that prior to 01.11.2004 all appeals were chargeable to fees. New Section 86(6) restricts charging of fees on appeals involving demand of service tax, interest or levy of penalty only. The Bench was, therefore, of the view that legislature did not intend to charge any fees in appeals relating to refund/rebate.

The larger Bench held that no fee is payable on appeals relating to refund/rebate of Service Tax. Since provisions under Section 129A (6) of Customs Act and 35B (6) of Central Excise Act, are identical, no fees is payable in respect of appeals pertaining to refund of Excise duty or Customs duty.

Hopefully, end of the debate!

Please see 2013-TIOL-1103-CESTAT-DEL-LB

Standard Unit Quantity Code (UQC) - be sure of your product - litres or metres

THE issue of poor quality of trade data has been engaging the attention of the Government. An analysis of National Import Data Base (NIDB) by the Central Government reveals that there are at times variations between the lowest and highest unit values of the same item, which might escape detection on account of the use of different unit codes.

The matter has been carefully examined by the Board with the objective of improving data quality both from the view point of generating error free trade statistics as well as providing usable contemporary reference values to the assessing officers. The Board notes that Standard Unit Quantity Codes (UQC) indicated in the Customs Tariff Act, 1975 are not being uniformly declared by importers and exporters for the same items across different Customs locations. This impacts data quality and makes comparisons and aggregations difficult. The use of non-uniform UQCs for the same item also vitiates the quality of the NIDB data and reduces its utility to the assessing officers, who are unable to ascertain the contemporaneous values or assessment practice of a given item in different Customs locations.

The Board is of the view that the solution lies in improving the quality of data by using standard UQCs.

And to do this, the Board directs that the Customs field formations should ensure that only the correct and prescribed Standard UQC as per the Customs Tariff Act, 1975 is mentioned in Bills of Entry/ Shipping Bills.

At the same time, the Board cautions that the exercise should not result in delays in clearance of cargo.

The Directorate of Valuation is also advised to monitor the correct use of UQCs and modify the software applications suitably.

In the conference of Chief Commissioners presided over by the Member (Customs) CBEC held on 01/10/2005, it was decided that all the Customs stations should take action to implement the Standard Unit of Quantity prescribed in the Customs Tariff within a period of three months. After nearly eight years, Board finds that the decision taken at its Chief Commissioners' conference to implement the standard within three months is yet to be implemented!

Please also see DDT 273 30 12 2005

CBEC Circular No. 26/2013 -Cus., Dated: July 19, 2013

Import of Self Copy Paper etc. allowed at reduced Tariff

THE Central Government has amended notification No.46/2011-Customs, dated the 1st June, 2011 by inserting a new serial number 565A and entries thereto as under -

TABLE

Inasmuch as Self Copy paper etc. are now entitled for reduced Tariff rates of import duty if the goods are procured from ASEAN and Philippines. One more measure to increase Trade with these countries is always welcome.

Notification No. 35/2013-Cus., Dated: July 18, 2013

FTP - Grant of Personal Hearing by DGFT

THE recently amended para 2.49.2 of the foreign Trade policy reads as:

2.49.2 Personal Hearing by DGFT

a) Paragraph 2.5 of FTP contains the provision for relaxation of Policy and Procedures on grounds of genuine hardship and adverse impact on trade. DGFT may consider such request after consulting respective Norms Committee, EPCG Committee and Policy Relaxation Committee (PRC).

b) As a last resort to redress grievances of Importers/Exporters, DGFT may provide an opportunity for Personal Hearing (PH). For such PH, a specific request has to be made to DG if following conditions are satisfied:

i. If an importer/exporter is aggrieved by any decision taken by Policy Relaxation Committee (PRC), or a decision/order by any authority in the Directorate General of Foreign Trade, and

ii. a request for review before the said Committee or Authority has been filed,

iii. such Committee or Authority has considered the request for a review, and

iv. the exporter/ importer continues to be aggrieved.

c) The decision conveyed in pursuance to the personal hearing shall be final and binding.

d) The opportunity for Personal Hearing will not apply to a decision/order made in any proceeding, including an adjudication proceeding, whether at the original stage or at the appellate stage, under the relevant provisions of F.T.(D&R) Act, 1992, as amended from time to time.

It has now been decided that Personal Hearing (PH) in such cases by the Director General of Foreign Trade will be held at Udyog Bhawan, New Delhi-11 on second Tuesday of every month between 3:00PM to 4:00PM. In case, in any month, 2nd Tuesday is not a working day then such PH may be held on next Tuesday.

Any importer/exporter who satisfies the conditions given in the Para 2.49.2 of Foreign Trade Policy (FTP) may submit a representation to DGFT for seeking PH before him with the header: Request for PH before DG under Para 2.49.2 of FTP.

DGFT Trade Notice No. 05/2013-Cus., Dated: July 19, 2013

Validity of Recruitment Rules - CBEC Clarifies

DURING the Annual Conference of Chief Commissioners, (Customs and Central Excise) held on 17th July, 2013, some of the Chief Commissioners have raised a doubt whether they can make recruitment pending amendment to Recruitment Rules.

Department of Personnel and Training vide O.M. No. AB.14017/79/2006-Estt. (RR) dated 6th September, 2007 has clarified that Recruitment Rules are statutory and they will not cease to operate unless they are repealed or replaced. Hence, there is no bar for making recruitment on the basis of existing Recruitment Rules.

So, CBEC clarifies that there is no bar for making recruitment on the basis of existing Recruitment Rules.

CBEC F. No. A-12018/5/2013-Ad.II.B., Dated: July 18, 2013

I-T - Cadre Review - CBDT issues Sanction Order for Creation of Posts

CBDT has issued sanction order for the Additional Posts created consequent to cadre review.

26 posts of Chief Commissioners have been upgraded to the posts of Principal Chief Commissioner of Income Tax in the Apex Scale of Rs 80,000 (Fixed).

Remaining 90 posts of Chief Commissioners of Income fax have been upgraded from HAG scale of Rs 67,000 - 79,000/ to HAG+ scale of Rs 75,500 - 80,000/ and one new post has been created at HAG+ scale

300 posts of Commissioners of Income Tax have been upgraded from SAG scale of 37400 - 67000/ (Grade Pay 10,000) to Principal Commissioner of Income Tax in HAG scale of 67000 - 79000/-.

CBDT F. No.HRD/CM/102/3/2009-10/110167., Dated: July 19, 2013

I-T- Gazetted Officers Association unhappy with Cadre Review

THE Income Tax Gazetted Officers Association is not happy with the cadre restructuring proposals as promotion to the post of newly created Deputy Commissioner/Assistant Commissioner will be filled in a phased manner in the next three to five years. The association wants all new posts to be filled by promotion and at one go.

Customs Appraisers - A Disillusioned Lot

IT is said that the appraiser is the only officer in the department who takes decisions. There is a feeling among Central Excise Superintendents that the appraisers are a manipulative, rich and powerful group who has managed to get all promotions and perks in the department. But there is another tragic side also. We know an appraiser with outstanding abilities, with absolutely no black mark languishing as an appraiser for the last 16 years (Of course there are Central Excise Superintendents languishing for more than 20 years in the same post) - all because the CBEC does not prepare a proper seniority list. It seems Board has a seniority list of appraisers only up to 2002 and all the appraisers in that list are promoted. It seems the Board is sitting on the file of preparation of Revised All India list and if that is done, some 25 appraisers will be placed in the seniority in the year 2002 and all of them will get promotion as nearly 35 officers junior to them are already promoted.

It is unfortunate that Board has no time or inclination to look after the career interests of its lower staff who are languishing for no fault of theirs. Even without cadre review, several Superintendents of Central Excise of the 1993 batch will get promotion if the vacancies are filled and many of them will retire in the next few months without having seen a second promotion in their 35-year-old career.If the Board is not able to fill existing vacancies properly, how will they handle the massive cadre restructuring if and when it comes?

Since penalty is only Rs.28.44 lakhs, matter to be placed before Single Member Bench

IN a Service Tax case, the Division Bench of the CESTAT, WZB held as under -

"Considering the fact that the appellant has discharged the Service Tax liability of Rs.28,97,869/- along with interest of Rs.1,04,931/- against the demand of Rs.28,34,398/- and the same is sufficient for hearing this appeal, we waive the requirement of pre-deposit of the amount of penalty imposed and stay recovery thereof during pendency of the appeal.

2. Since the penalty, which is under contest, is only Rs.28,44,398/-, the Registry is directed to place this matter before the Single Member Bench for disposal on 24.07.2013."

Incidentally, section 35D of the CEA, 1944 [Procedure of Appellate Tribunal] has not been made applicable to Service Tax matters through s. 83 of the FA, 1994. See also 2006-TIOL-1356-CESTAT-KOL and 2012-TIOL-1213-CESTAT-MUM.

See 2013-TIOL-1104-CESTAT-MUM

Jurisprudentiol – Tuesday's cases

Customs

Classification - 'Non-alloy steel melting scrap consisting of skull' - Falls under 72.04: HC

THE Revenue is on appeal against the order of the Customs, Excise and Service Tax Appellate Tribunal, Chennai, raising the following substantial question of law:-

"In view of the evaluation by chemical analysis of the subject goods by the scientists of NML had proved the presence of "slag" and "skull scrap" in the consignment samples tested as per the Inspection Report on the basis of which the goods came under Chapter 26 of the Customs Tariff Act Heading 2619 which ultimately confirmed the requirement of specific license for import and the respondents failed to declare the same in the Bill of Entry, whether the conclusion arrived at in the Final Order passed by the Hon'ble Tribunal not having expertise in the subject goods and chemical analysis report submitted by NML, would be legally enforceable and tenable?"

Income Tax

Whether contents of pen drive seized during a Search and its print-outs constitute good enough reasons to assume jurisdiction u/s 147 - NO: ITAT

THE issues before the Bench are - Whether the contents of a pendrive seized during a Search and its printouts constitute good enough reasons to assume jurisdiction u/s 147 and make additions; Whether the reasons for reopening the assessment recorded on the basis of these contents can be held to be valid and Whether, for valid assumption of jurisdiction to frame a reassessment u/s 147, a proper and valid service of notice u/s 148 on assessee is mandatory requirement and violation thereof will result in quashing of the reassessment proceedings. And the verdict goes against the Revenue.

Service Tax

Distribution of IMFL and Beer - taxable under BAS - Earlier decisions of Tribunal not relevant in this case: CESTAT

THE appellant a Government of Rajasthan Undertaking, registered under the Companies Act, 1956 is entrusted by the State Government with the business of purchase of IMFL and Beer (liquor) from manufacturers, transport of liquor to various depots of the appellant and for further sale thereon to various licensees (i.e. with the wholesale trade in liquor), with a view to regulate supply of liquor through conferring the exclusive privilege of purchase and sale in the wholesale thereof upon the appellant. As a consequence of the monopoly assumed by the State Government in this area and confirment of the privilege on the appellant, it is mandatory for all manufacturers/distilleries/suppliers to sell liquor in the State only through the canalising agency, namely the appellant.

Intelligence gathered by Revenue revealed that the appellant collected a commission of Rs. 45,06,33,440/- during the period 01.02.2005 to 31.08.2007 but failed to remit service tax amounting to Rs. 5,21,25,843 /-. Revenue assumed that the appellant had provided the taxable Business Auxiliary Service (BAS) to manufacturers of liquor/distilleries.

See our Columns Tuesday for the judgements

Until Tuesday with more DDT

Have a nice day.

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