TIOL-DDT 2296
18.02.2014
Tuesday

THOUGH DDT does not like to pat its back as the FM has done, we are extremely happy that our campaign to exempt RICE from Service Tax on various services like transport, handling, storage, construction of warehouses, has borne fruits. Of course the acidic letter from Jayalalithaa must have clinched the issue. Even now the Finance Minister does not concede that rice is an agricultural produce. He has clarified that transport of rice is already exempted as foodstuff and milling of paddy is also exempted as an intermediate production process in relation to agriculture. So rice is related to agriculture, is foodstuff, BUT IS NOT AN AGRICULTURAL PRODUCE. Anyway what's in a name - that which you call rice, by any other name, will taste so good.

So, now handling and storage of rice is exempted with effect from yesterday and transport of rice and milling of paddy were already exempted by clarifications issued yesterday.

Now the solution creates some more problems:

As handling, storage and warehousing of rice is exempted by Notification No. 04/2014-S.T, dated: February 17, 2014 (yesterday), the Department will argue that it was not exempted prior to 17.2.2014. So will the Government come out with a Section 11C Notification? Why can't the Government make a mention of that? If no such 11C notification is contemplated, what is the logic of taxing this activity between 1.7.2012 and 17.2.2014? There is another complication. Some Government Corporations have already paid the Service Tax under VCES and they will not get refund. This issue has to be sorted out.

What about Construction of warehouses for storage of rice? This issue has been totally left out in the interim budget and the notifications/clarifications. As per Sl. No. 14 (d) of the Notification No. 25/2012-Service Tax, dated 20.06.2012, Services by way of construction, erection, commissioning, or installation of original works pertaining to,- post-harvest storage infrastructure for agricultural produce including a cold storage for such purposes ; are exempted. Now is construction of warehouses for storage of rice exempted? As rice is not an agricultural produce as clarified by the Hon'ble Finance Minister, construction of warehouse for storage of rice is not exempted. May be the Board missed out this and has to be rectified soon. Perhaps while voting on the interim budget.

This exemption has a peculiar problem. Construction of a warehouse for storage of agricultural produce is exempted. Wheat is an agricultural produce; rice is not. If a warehouse is constructed for storage of wheat, will the exemption be withdrawn, if later rice is stored in the warehouse?

In his Budget speech the FM said, "By virtue of the definition of 'agricultural produce' in Finance Act 2012, read with the Negative List, storage or warehousing of paddy was excluded from the levy of service tax. Rice was not. The distinction is somewhat artificial."

Just three months ago, he wrote to his Cabinet Colleague Prof. KV Thomas "Rice is not covered by the definition of agricultural produce"

The Interim Budget

PC reading out his Budget Speech. Please see the three MPs standing by his side; they were standing there throughout his speech. To protect him?

We have covered the Budget extensively yesterday itself - A brief summary of the tax changes:-

Excise Duty reduced for Automobiles - mobile phones

Mobile phones till now attracted an excise duty of 6% for those with an RSP of more than Rs. 2000 and 1% for others. Now it will be 6% with CENVAT Credit and 1% without credit irrespective of the RSP.

Excise duty on machinery, electric, electronic goods reduced - but only till 30.06.2014. Goods falling under Chapter 84 and 85 of the Central Excise Tariff with some exceptions will now attract a duty rate of 10% instead of 12%. This exemption will be valid only till 30.06.2014.

Excise duty on automobiles reduced - but only till 30.06.2014. Automobiles falling under Chapter 87 will also attract reduced rates of duty and this will also be valid till 30.06.2014.

The Finance Minister said that the rates can be reviewed at the time of regular budget and that is why the reduction as of now is valid only till 30.06.2014.

Exemption for goods supplied to mega power plants - time to produce certificate extended : As per condition 43 of Notification No. 12/2012-CE dated 17.03.2012, the final mega power status certificate is to be produced within thirty six months. Now this is extended to sixty months.

Notification No. 12/2012-CE dated 17.03.2012 is amended.

Notification No. 04/2014-CE, Dated: February 17, 2014

Customs Exemption to Embryo and …

Human embryo exempted from Customs duty : Human Embryo not for commercial purposes is now exempted.

Non Edible industrial grade oil. Customs duty which varies from 10 to 20% is now reduced to 7.5%.

LNG for Dahej SEZ exempted : Liquefied Natural Gas (LNG) imported for consumption in the C2-C3 Plant of M/s Oil and Natural Gas Corporation Limited located in the Dahej Special Economic Zone and also the remnant Liquefied Natural Gas (LNG) or Natural Gas (NG) cleared into the Domestic Tariff Area (DTA), after completion of the authorised operations, exempted from Customs duty.

Goods for Construction of Roads : Certain capital goods required for construction of roads exempted.

Plant and machinery for Bank Note Press : plant or machinery or equipment, related spares and consumables imported by or on behalf of BNPMIPL, for setting up of a Bank Note Paper Mill project to manufacture Cylinder Mould Vat Made Watermarked Banknote (CWBN) paper and other security paper at Mysore, Karnataka; and Plant or machinery or equipment, related spares and consumables for online inspection of pulp to attract 5% duty. This is also exempted from SAD.

Notification No. 12/2012-Customs dated 17.03.2012 is amended.

Notification No. 05/2014-Cus, Dated: February 17, 2014

Notification No. 06/2014-Cus, Dated: February 17, 2014

Service Tax

THE Government has exempted:

Cord Blood Banks :Services provided by cord blood banks by way of preservation of stem cells or any other service in relation to such preservation;

Storage of Rice :Services by way of loading, unloading, packing, storage or warehousing of rice.

Notification No. No.25/2012-Service Tax, dated the 20th June, 2012 is amended.

Notification No. 04/2014-S.T, Dated: February 17, 2014

The RICE exemption:

While handling and storage of rice has been exempted, the Board has clarified that transportation of rice is already exempted under the category of foodstuff.

Milling of paddy : Board has also clarified that when paddy is milled into rice, on job work basis, service tax is exempt under sl.no.30 (a) of exemption notification 25/2012-ST dated 20th June, 2012, since such milling of paddy is an intermediate production process in relation to agriculture.

CBEC Circular No. 177/03/2014 -ST, Dated: February 14, 2014

Proper Officers of Customs

NOTIFICATION No. 40/2012-Cus NT dated 02.05.2012, assigns the proper officers in relation to various sections of the Customs Act.

Now, CBEC has nominated Additional Commissioner/Joint Commissioner as the proper officer for Section 149 (after grant of order for clearance of goods under section 47 or section 51 of the Customs Act, 1962 as the case may be) and Assistant Commissioner/Deputy Commissioner as the proper officer for Section 149 (before grant of order for clearance of goods under section 47 or section 51 of the Customs Act, 1962 as the case may be);

Section 149: Amendment of documents. - Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended:

Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.

SECTION 47: Clearance of goods for home consumption. - (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption.

(2) Where the importer fails to pay the import duty under sub-section (1) within five days excluding holidays from the date on which the bill of entry is returned to him for payment of duty, he shall pay interest at such rate, not below ten percent and not exceeding thirty six percent. perannum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such duty till the date of payment of the said duty:

Provided that where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of this section.

Provided further that if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section.

SECTION 51: Clearance of goods for exportation. - Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation.

Notification No. 12/2014-Cus NT, Dated: February 17, 2014

Hard Work and Harvard

SPEAKING in Chennai on 8th February 2014, NarendraModi said, "I have come up from being a chaiwallah and never even seen the doors of Harvard; it is not Harvard but hard work that matters."

In his Budget speech yesterday, the Finance Minister said, "among other mentors, my mother and Harvard taught me the value of hard work."

Not a Populist Political Budget but a Harvard Scholar's Economic Budget?

THIS was his last budget speech at least in this Lok Sabha. Political parties about to face elections are tempted to present populist budgets to appease the voters, but did PC overcome this temptation? The fact is everything was doubtful, whether he would be able to read his speech in Parliament and the Government's majority in Lok Sabha is only an opinion, which is best left untested. Thus it is more doubtful if the Finance Bill will be passed by the Lower House. In such a situation, the Finance Minister cannot take the risk of going too far with a political budget. Though nobody has the guts to oppose the "one rank one pension" scheme for the defence services, not every sop will be easily accepted by the opposition. So, the Finance Minister has little option - and he has made the best use of it.

But there is still hope. Indirect Taxes Notifications can still be issued; benefits to employees can still be given and so in another couple of weeks, we may still have a major announcement from the Finance Ministry rolling out those last minute lollipops just before the elections.

And as usual the FM ended his speech with a couplet from the sage, Thiruvalluvar, which means, "Not the spear but sceptre swayed with equity alone gives the ruler victory." How nice it would be if every Government servant realised this.

Jurisprudentiol - Wednesday's cases

Central Excise

Inter-unit transfer of goods manufactured by a 100% EOU - No requirement to pay SAD though no sales tax is paid - demand set aside: CESTAT

NOTIFICATION No. 23/2003 CE dated 31.03.2013 exempts goods manufactured in a EOU and cleared in DTA from payment of excise duty equivalent to the Additional duty of Customs leviable under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 subject to the condition that the goods cleared into the Domestic Tariff Area are not exempt by the State Government from payment of sales tax or value added tax. In case of inter-unit transfer of goods, no Sales Tax is paid as it is only a stock transfer. However, department took a view that the EOU has to pay Additional Duty of customs and confirmed demand in this case. This issue has already been decided infavour of the EOUs in case of 2014-TIOL-04-CESTAT-MUM. But, what is interesting is without making any reference to this precedent decision of the Mumbai Bench, the Ahmedabad Bench on independent analysis held that 4% duty need not be paid in case of stock transfers.

Income Tax

Whether when company had no income from its main business of money lending but had earned interest and dividend by investing in shares, loan advanced to its MD is to be construed as deemed dividend in hand of MD - YES: HC

THE assessee is an individual. In respect of AY 2003-2004, proceedings were initiated by issuing notice u/s 148. The assessee did not file any return of income. Hence, notice was issued to the assessee u/s 144. A reply was sent stating that the assessee expired on 26.5.2008 and he was represented by legal heir, who was his wife, that he had filed a return of income on 25.8.2003, which was to be treated as return for the purpose of Section 148. Thereafter, a notice u/s 143(2) was issued to the assessee. The Department had re-opened the assessment for the AY 2003-2004, observing that M/s. Thottakkad Estates (P) Ltd., Mannar, had advanced a loan to Sri. K.C. Oommen, its MD which was deemed dividend in the hands of the said K.C. Oommen u/s 2(22)(e). It was observed that the deemed dividend escaped assessment and hence the assessment was required to be re-opened.

The issue before the Bench is - Whether when the company had no income from its main business of money lending but had earned interest and dividend by investing in shares, the loan advanced to its MD is to be construed as deemed dividend in the hands of the MD. And the answer goes against the assessee.

Service Tax

Merely because adjudicating authority has given an elaborate finding, it does not mean that appellate authority need not discuss the matter and give a finding - lower appellate authority has not applied his mind at all - such an approach makes a mockery of the appeal proceedings - Order set aside and matter remanded: CESTAT

THE appellant, a co-operative bank is before the CESTAT against an order passed by the Commissioner (Appeals) upholding a Service tax demand of Rs. 7,45,060/-.

The primary submission of the appellant is that the lower appellate authority has not given any reasoning for the conclusion he has drawn except for saying that the appeal does not have much force and the adjudicating authority has given elaborate findings to hold the activity undertaken by the appellant is a taxable service. Inasmuch as it is submitted that in the absence of any reasoning and finding given by the lower appellate authority on the various contentions raised, the impugned order is not sustainable in law and needs to be remanded for consideration afresh.

The Revenue representative, apparently, did not oppose the above submission but reiterated the findings of the lower authorities.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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