TIOL-DDT 2285
03.02.2014
Monday

DDT could not resist the temptation of starting this edition with an expression of deep gratitude to Justice Narasimha Reddy of the AP High Court for his recent marvellous order understanding the plight of the taxpayers who are routinely asked to pay pre-deposit of huge amounts for filing appeals.

It is common for the Department to issue Show Cause Notices even in cases where no tax/duty is payable and adjudicating authorities with predictable certainty confirm the huge demands made in these Show Cause Notices with penalties under all available sections. While CESTAT had been generally fair and just in waiving whole or part of the pre-deposit required for filing the appeals, on occasions, even the Tribunal is very harsh in ordering pre-deposit of the whole amount with interest and penalty.The High Courts are known to extend some concessions like reducing the pre-deposit amount or giving more time for the appellant to pay the amount or on occasions asking the Tribunal to consider the appeal without insisting for a pre-deposit. Most of the assessees will find it a back breaking exercise to pay such huge amounts of pre-deposit and will have to simply close down business. And when the assessee wins the case, it is almost impossible to get back the pre-deposit unless they prepare themselves for the second round of the battle and justify that there has not been any unjust enrichment. Does the economy really need such an exercise?

It is a miracle of Indian psyche that in spite of such impossible and vitally damaging conditions, the Indian businessmen continue to do business and bear with a grin the perpetual harassment in the name of Government, which in the first place came into existence for the welfare of society - a fact that is almost forgotten and today Government is perceived as an unavoidable nuisance and burden, for the existence of which YOU WILL have to pay. How long can the Government continue with its brutal killing of the geese that lay the proverbial golden eggs? Can this last forever?. How long can you make laws full of flaws and then punish the taxpayers for your mistakes while drawing fat salaries and perks from the taxes they pay? Recently some assessees approached the department and wanted a clarification whether they were liable to pay Service Tax. If they were, they wanted to pay up under VCES. The Department gave them a few Board Circulars and extracts from the Act and told them to proceed as per law!

In such a chaotic situation, comes like a whiff of fresh air, the judgement delivered by Justice Reddy.

In a service tax appeal, the adjudicating authority had confirmed a demand of about Rs. 33 Crores. The service was in relation to irrigation projects of the Government of Andhra Pradesh. The assessee would have been under the genuine impression that no Service Tax was payable as many identically placed assessees were not paying any tax - Nay, in fact nobody was paying the tax; the department targeted some contractors and issued notices. There was confusion with some parties getting relief at appellate stages and some not getting such benefit. In this case, the CESTAT ordered pre-deposit of about Rs. 30 Crores (of the 33 Crores demand) of tax and also ordered payment of interest in addition. Penalty was mercifully waived.

What does an assessee do when he is hit with such a pre-deposit order? Normally no assessee would have that kind of money to make pre-deposit - it is almost impossible to collect this amount from the clients after about six years - had the Department woken up a little earlier, perhaps the damage could have been a little less. If he does not make the pre-deposit, the appeal will be dismissed and all the time the department will be breathing down his neck to collect the ‘arrears' especially in the targeted months of January-March.

The assessee approached the High Court and with masterly precision and concise expression reminding one of scientific formulae, in less than 200 words, Justice Reddy hit the nail on the head of this malaise called pre-deposit.

Justice Reddy noted that the indiscriminate denial of the power of waiver is like telling the party to pay or perish. He observed that while collecting taxes is a sovereign power, adjudication of disputes is a duty.

The following words of Justice Reddy should be a guide/checklist for all tax appellate authorities and they should read these six sentences before delivering every order on pre-deposit.

Interestingly, in spite of these observations, the High Court ordered pre-deposit of 50 per cent of the tax demanded.

We bring you this judgement today. Please see Breaking News

Service Tax - Governmental Authority - Redefined

AS per Sl. No.12 of Notification No. 25/2012-Service Tax dated 20.06.2012, there is exemption for - Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of - civil structure, canal, dam etc….

As per Sl. No. 25, there is exemption for - Services provided to the Government, a local authority or a governmental authority by way of - water supply, public health, repair of aircraft etc……

As per Sl. No. 34, there is exemption for - Services received from a provider of service located in a non- taxable territory by - (a) Government, a local authority, a governmental authority or an individual in relation to any purpose other than commerce, industry or any other business or profession;

As per Sl. No. 39, there is exemption for - Services by a governmental authority by way of any activity in relation to any function entrusted to a municipality under article 243 W of the Constitution.

Now the question is what or who is a/the governmental authority?

As per Para 2, Clause (s) of Notification No. 25/2012-Service Tax dated 20.06.2012, ‘governmental authority' is defined as:

"governmental authority'' means a board, or an authority or any other body established with 90% or more participation by way of equity or control by Government and set up by an Act of the Parliament or a State Legislature to carry out any function entrusted to a municipality under article 243W of the Constitution."

Now this definition is changed to:

"governmental authority" means an authority or a board or any other body;

(i) set up by an Act of Parliament or a State Legislature; or

(ii) established by Government,

with 90% or more participation by way of equity or control, to carry out any function entrusted to a municipality under article 243W of the Constitution.

The purpose of this amendment seems to be to clarify the definition in better language. As per the earlier definition, the governmental authority had to be set up by an Act of Parliament or State Legislature and there was a doubt as to whether by Government in the earlier definition was in relation to ‘establishment' or ‘control'.

The Board should be kind enough to come out with a Circular explaining the purpose of this substitution lest the field formations have a field day!

Writing complex sentences is no more the forte of our law drafters as in the days of yore - now they should adapt the bulleted style for expressing whatever they want to convey.

Notification No. 2/2014 - ST., Dated: January 30, 2014

Customs - Amendment to Drawback Rules - Board explains

RECENTLY the Government had amended the Drawback Schedule with effect from 25.01.2014 by Notification No.05/2014-Customs (N.T.), dated 21.01.2014. The main changes/amendments made are:

a) Separate entries have been created for (i) Accelerated Freeze Dried (AFD) crustaceans under tariff item 030603 (ii) knitted or crocheted fabrics containing 5% or more by weight of spandex/ lycra/ elastane, for grey as well as dyed, under tariff items 600210 to 600217 and 600410 to 600417 (iii) gloves, specially designed for use in sports namely golf gloves, made of synthetic materials, under tariff items 611609 and 621608 (iv) fabric swatches under tariff item 630701 and (v) poultry equipment and parts thereof under tariff item 843601;

b) Drawback Caps have been changed for tariff item nos. 420207, 420210 & 420307, coir products falling under chapter 57 and motor cars of heading 8703;

c) Drawback rate of 1.7% or 1.9% (Customs portion) under chapter 87 has been changed to 2%. Tractors (8701) have been provided composite rate and cap;

d) Description for tariff item no. 4820200001 has been amended to cover only those stationery items which are either with PVC/BOPP jackets or are laminated. Drawback rates and caps have also been rationalized for tariff item nos. 4820200001, 4820200009, soft stuffed toys (950304), PVC inflatable toys (950305) and croquet sets (95069962);

e) Existing entry under tariff item no. 731902 i.e. "Steel Cops/pirn/bobbins" has been replicated under heading 7326 with same rate and cap.

Board wants the field formations to issue necessary Public Notices and Standing Orders for guidance of the trade and officers/staff.

Circular No. 3/2014-Cus., Dated: January 30, 2014

Tariff Value of several items marginally reduced

THE Government has decreased the Tariff value of Gold from 407 USD to 404 USD per 10gms and that of Silver from 663 to 635 USD per kilogram with effect from 31.01.2014. Tariff values of other items are also slightly reduced.

There is no change in the tariff value of Poppy Seeds and Areca nuts. And as suggested by us in DDT 2242, the Board has done away with insertion of remarks “No change” against the tariff value(s) in this notification too so as to avoid the ‘cut & paste' fracas that had happened in its notifications 111/2013-Cus(NT) and 116/2013-Cus(NT) and reported by us in DDT 2232 & 2242.

Incidentally, the remarks “No change” appearing in the table below have been added by us for quick reference.

The Tariff values as on 15 .01.2014 and with effect from 31.01.2014 are as under:

Notification No. 8/2014-Cus (NT), Dated: January 31, 2014

NFSG Benefits to 19 IRS (CCE) officers

GOVERNMENT has granted NFSG to 19 IRS (Customs and Central excise) officers. NFSG means Non-functional Selection Grade and the pay scale starts at Rs. 37400 + a grade pay of Rs. 8700. The total pay hike would be around Rs. 37,000/-. How do you know who these NFSG officers are? You will find them suddenly without any provocation or order calling themselves Additional Commissioners. Nobody knows who appointed them as Additional Commissioners, but once they get this coveted NFSG, they are called Additional Commissioners - Of course now technically there is no difference between the powers of a Joint Commissioner and Additional Commissioner.

It is learnt that 33 officers of the Department are cleared for promotion as Commissioners.

CBEC Notification No.03/2014 in F. No.A.32012/21/2013-Ad-II Dated: January 31, 2014

First Lady Chief of CBEC Retires

THE first ever lady to become Chairperson of the CBEC Praveen Mahajan has retired and she is succeeded by another lady Shanti Sundaram. The only thing that the departmental officers expect from the new chairperson is promotions and the assessees - less of Government.

We wish the new Chairperson all the best.

Jurisprudentiol – Tuesday's cases

Central Excise

CENVAT - Prior to 2011, trading was not considered as service at all and, therefore, appellant could not have taken credit pertaining to trading activities ab initio - Pre-deposit ordered of Rs.3 Crores: CESTAT

PRIOR to 2011, trading was not considered as service at all and, therefore, the appellant could not have taken credit pertaining to the trading activities ab initio. Since Rule 6(3) talks of dutiable as well as exempted services, it cannot apply to a situation wherein credit taken pertains to a non-service activity. Similarly, in the case of Insurance services availed by the appellant, bulk of it pertains to traded goods and, therefore, the appellant could not have taken credit in respect of this service for the manufacturing activity undertaken at their Alibag factory.

Income Tax

Whether where assessee admits tax liability on its own, law does not require further evidence to corroborate same - YES: AP HC

THE assessee is a company. During assessment, AO made an assessment on the basis of voluntary statement made by the MD of assessee. In that statement, it was admitted that certain defects persist in maintenance of expense vouchers. The payments were not properly recorded. Taking into account the above deficiencies, which were not deliberate and to cover up any other omissions and commissions, assessee voluntarily offer Rs.20.00 lakhs as additional income in respect of training and development divisions of the company and EOU division of the company. The fact shows that at the time of assessment, assessee had not retracted the aforesaid admission making voluntary disclosure.

The issues before the Bench are - Whether voluntary admission of income by the assessee can be considered as a valid piece of evidence and Whether in case an assessee accepts the tax liability on its own, there is no need to collect further evidence or making any enquiry. And the verdict goes against the assessee.

Customs

Refund - No prudent business man/organization would continue to bear incidence of higher duty without passing same to buyer of goods - refund claims hit by Bar of unjust enrichment -: CESTAT

THE respondents had imported 75 consignments of Aloe Vera Products viz. Aloe Vera Gel, Aloe Berry Nectar and Forever Freedom and cleared the same between May, 2003 and April, 2005. A dispute arose between Revenue and the respondent regarding the classification of the product.

While respondent sought classification of these products under Customs Tariff Heading 2009 as Fruit Juices & Vegetable Juices, Revenue decided the classification under Customs Tariff Heading 2106 as Food Preparation. The matter was finally decided by the Tribunal (2005-TIOL-964-CESTAT-MUM) in favour of the respondent.

Consequent to the said decision, the respondent filed a refund claim for differential amount of Customs duty paid to the extent of Rs.7,61,06,909/- The Deputy Commissioner vide his order dt. 14.11.2006 held that the said amount was required to be refunded. However, the refund claim was adjudicated to be hit by the bar of unjust enrichment and, therefore, adjudicating authority directed that the refund amount shall be credited to the Consumer Welfare Fund in terms of Section 27(2) of the Customs Act, 1962.

See our Columns Tomorrow for the judgements

Until tomorrow with more DDT

Have a nice day.

Mail your comments to vijaywrite@taxindiaonline.com