  TIOL-DDT 2306
04.03.2014
Tuesday
THE Board's recent attempt to clear the cobwebs of confusion in relation to CENVAT Credit on inputs supplied by an importer has caused quite a confusion as seen from the large number of mails we have received on the subject.
Actually, the issue is quite clear now - don't get confused with the large number of notifications.
Please forget Notification Nos 17/2013-CE NT and 18/2013-CE NT dated 31.12.2013. They have been rescinded by Notification Nos. 06 and 07/2014-CE NT dated 26.02.2014, respectively. As to the confusion created by them, well just forget them - they are rescinded. They went out of the Statute even before they could enter the dreaded portals of our Laws.
Now we are left with four notifications, 8,9,10 and 11/CE NT dated 28.02.2014 and what all these notifications stipulate are:
1. Importers who issue invoices on which CENVAT Credit can be taken are required to get registered with the Central Excise Department.
2. The Registered importer is required to file a quarterly return.
All other changes are consequential.
So, if you want to get inputs from an importer, do ensure that the importer is registered with the Central Excise Department.
Pre - 2005 Banknotes - Time for Exchange Extended
RESERVE Bank of India has extended the date for exchanging the pre-2005 banknotes to January 01, 2015. It has also advised banks to facilitate the exchange of these notes for full value and without causing any inconvenience whatsoever to the public. The Reserve Bank solicits the cooperation of the public in withdrawing these notes from circulation by exchanging them at a bank branch convenient to them.
RBI informs that this withdrawal exercise is in conformity with the standard international practice of not having multiple series of notes in circulation at the same time. A majority of such notes have already been withdrawn through the banks and only a limited number of notes remain with the public.
RBI clarifies that the public can continue to freely use these notes for any transaction and can unhesitatingly receive these notes in payment, as all such notes continue to remain legal tender.
Please see: DDT 2278 - 23.01.2014 + DDT 2279 - 24.01.2014
RBI Press Release 2013-2014/1735, Dated: March 03 2014
Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 is curative provision and retrospective in nature
MORE than eight years ago, while reporting the Tribunal decision in Gujarat Goldcoin Ceramics Ltd. (2005-TIOL-853-CESTAT-MUM) we had mentioned -
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SOONER than later this was bound to happen.
Section 4A of the CEA'44 launched with much fanfare in the year 1997 has seen many ups and downs and has been repeatedly amended by the consequent Finance Acts.
Additional consideration
The definition of retail sale price given in Explanation 1 stipulates that the retail sale price is the maximum price at which the packaged goods may be sold to the ultimate consumer, inclusive of a host of elements and the price is the sole consideration for sale. In case the price is not the sole consideration for sale, what could be done with the "additional consideration received" was a grey area and the stand that was taken earlier was that the goods are to be assessed under Section 4 of the CEA'44.
This defect was sought to be rectified to a large extent by the Finance Bill, 2003 which envisaged substitution of sub-section (4) with a new one which proposed that the Central Government shall ascertain "in the prescribed manner" the retail sale price of such goods and the retail sale price so ascertained shall be the deemed retail sale price for the purpose of Section 4A.
Unfortunately, "the prescribed manner" has not yet been laid down by the Central Government by either issuance of any Price Determination Rules in respect of Section 4A nor has the CBEC come out with any guidelines.
The first casualty
In a recent case, the Mumbai Bench of the Tribunal while granting stay against such a confirmed demand observed:-
"Prima facie, Section 4A of the Central Excise Act, 1944 prescribes ascertainment of declared MRP and does not entitle the department to arrive at a MRP since no Rules prescribing such ascertained determination have been framed or shown to us. The order of demand as made along with the penalty, prima facie, cannot be sustained."
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Such a view was also taken by the CESTAT in the case of Legrand (I) Pvt. Ltd. 2007-TIOL-515-CESTAT-MUM.
While reporting another decision in the case of Gujarat Gold Coin Ceramics Ltd. 2008-TIOL-210-CESTAT-AHM, in February, 2008, we hoped that the Union Budget 2008 would provide the necessary impetus to section 4A.
Realizing that it would not be prudent to leave section 4A handicapped, the Central government brought into being with effect from 01.03.2008 the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 vide notification 13/2008-CE(N.T).
But naturally, the question that arose was whether these rules could take care of the past valuation disputes meandering over section 4A of the CEA, 1944.
And this question - Whether the demands for the period prior to 1.3.2008 are sustainable or not as there were no machinery provisions available to determine MRP of the product? - was referred to the Third Member in the case of Schneider Electrical India (P) Ltd. reported by us last October [See (2013-TIOL-1502-CESTAT-MUM).
After many marathon hearing sessions a 40 plus pages order was recently passed by the Third Member on reference and the answer to the quintessential question is a resounding YES.
It is imminent that the order would be challenged and the matter would be travelling to the Supreme Court in the days to come.
We bring you the order today. Please see Breaking News.
If you fall from train, you should fall outside train and not inside! - Frivolous Litigation - Indian Railways as good as Indian Revenue - Delhi High Court imposes costs to be recovered from officials
A Railway passenger was trampled upon in a General Compartment; he fell inside the compartment; had head injury and fracture of ribs and finally died in a hospital. The Railway Claims Tribunal granted a small compensation against which the mighty Indian Railways filed an appeal in the Delhi High Court.
The Railways argued that the passenger must have died due to old age. The man was about sixty years old!.
The Railways also argued that compensation can be paid only in case of accidental falling of any passenger from a train carrying passengers - and falling from a train means he should fall outside the train and not inside it!!!!. Anyone falling from a train, if he has any concern for his family, should ensure that he falls outside the train and by no chance inside it.
The Delhi High Court was aghast. In a judgement delivered last month, the High Court observed, "Strange are the ways in which Government Departments work. All I can state is that for no reason frivolous and irresponsible appeals are filed, and the Court fails to understand on the basis of what and whose legal opinion."
The High Court while dismissing the Railway appeal imposed a cost of Rs. 20,000 to be recovered from that official or officials who have given the opinion for filing of the appeal in the case.
Modi has lawyers for lunch - reincarnation of Gandhi!
THE Bar Council of India had its Golden Jubilee Celebrations recently in Ahmedabad's hi-tech Mahatma Mandir Convention Centre., which was attended by many Supreme Court judges, High Court Judges, politicians and over 7000 lawyers from several parts of the country.
The Star attraction was however Gujarat CM and PM (hopefully) in waiting Narendra Modi.
Bar Council of India Chairman Manan Kumar Mishra could not contain himself and he declared, "Mahatma Gandhi's soul has reincarnated as Narendra Modi. 'Iron Man' Sardar Patel has taken birth again here in the land of Gujarat."
A Supreme Court Judge who addressed the BCI meeting later said, "members of the Bar Council of India (BCI) should be strong enough to take action but not behave in a way to please electoral politics".
Parting Shot: At the closing ceremony, BCI announced that the State Government has not only allowed Mahatma Mandir to be used without rent for the event, but also sponsored free food for the 7000-odd lawyers who attended the Meet!
Justice Chalameswar of the Supreme Court, speaking on the occasion said that we (Law fraternity) had only ourselves to blame for the fall in standards in the profession (bar and bench) as we are solely responsible and we cannot blame the Government or any politician.
Don't lawyers know economics - that there is no free lunch?
Jurisprudentiol - Wednesday's cases
 NDPS
Section 50 - The accused must be individually informed that under Section 50(1) of NDPS Act, he has right to be searched before nearest gazetted officer or before nearest Magistrate: SC
SEVERAL judgements of the Supreme Court have loudly and clearly held that Section 50 of the NDPS Act requires the searching officer to inform the searched person his right of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. The officers normally don't follow this and end up losing the cases.
Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence.
Income Tax
Whether assessment can be reopened when issue of non-receipt of forex within period of 6 months from end of AY was not subject matter of original assessment - YES: HC
THE assessee is established as a 100% Export Oriented Unit (EOU) in Special Economic Zone (SEZ) and engaged in the business of manufacture and export of gold and diamonds jewellery. The assessee is entitled to a deduction u/s 10AA in respect of its income. The assessment was completed and the deduction u/s 10AA was granted to the extent of Rs.28.74crores. However, in March 2013, the AO issued a notice u/s 148 for reopening the assessment. The reason given in the notice was that the assessee had relied on the RBI circular No.91 dated 1.04.2003 for removing the stipulation of time limit for bringing in convertible foreign exchange and although its exports proceeds in convertible foreign exchange amounting to Rs.100,74,49,184/- it claimed deduction against the export turnover of Rs.114,10,82,258. This lead to excess deduction and thus escapement of income.
The issues before the Bench are - Whether the assessment can be reopened when the issue of non receipt of convertible foreign exchange within a period of 6 months from the end of the assessment year was not the subject matter of original assessment; Whether when the issue whether the assessee has declared its book profits after reducing the amount of deductions u/s 10AA was not considered during the original proceedings, the assessment can be reopened and Whether there is any bar on reopening of an assessment even if there has been no failure to make full and true disclosure necessary for assessment within the period of 4 years from the end of the relevant AY. And the verdict goes against the assessee.
Central Excise
CE - Rule 8(3A) of CER, 2002 - default in payment of duty beyond thirty days from due date - duty for each consignment to be paid by debit in account current but appellant paying by utilizing CENVAT - although what is required to be paid is to be construed as arrears of revenue the same have to be paid in cash - any other interpretation will make the restriction meaningless - what is not allowed directly cannot be allowed/claimed indirectly - appellant to pay Rs.8 crores in cash and is free to take CENVAT of equivalent amount and utilize for future clearances: CESTAT
THE appellants are the manufacturers of printed and laminated plastic films which attracts Central Excise duty.
During the month of October, 2010, they cleared excisable goods, on which duty of Rs.1,51,21,904/- was payable by them by 5.11.2010.
See our Columns Tomorrow for the judgements
Until Tomorrow with more DDT
Have a nice day.
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