TIOL-DDT 2232
18.11.2013
Monday

IN a Judgement delivered last week, the Supreme Court held that registration of First Information Report (FIR) is mandatory.

The Supreme Court held,

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Please see 2013-TIOL-63-SC-MISC-CB

FTP - Advance Authorization for export of an item prohibited for export - FTP Amended

GOVERNMENT has amended paragraph 4.1.13(a) and 6.2(a)(i) of the FTP 2009-2014 (R E-2012) to stipulate that:

No export or import of an item shall be allowed under Advance Authorisation/DFIA if the item is prohibited for exports or imports respectively. Export of a prohibited item may be allowed under Advance Authorisation provided it is separately so notified subject to the conditions given therein.

An EOU/EHTP/STP/BTP unit may export all kinds of goods and services except items that are prohibited in ITC (HS). Export of Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) shall be subject to fulfillment of the conditions indicated in ITC (HS). In respect of an EOU, permission to export a prohibited item may be considered, by BOA, provided such raw materials are imported and there is no procurement of such raw material from DTA.

DGFT Notification No. 51/(RE-2013)/ 2009-2014, Dated: November 14, 2013

FTP - Advance Authorization for export of an item prohibited for export - HOP Amended

DGFT has consequently amended paragraph 4.4.1 of the Handbook of Procedures Vol. I 2009-14 (RE 2012) to stipulate that:

Items covered under Chapter 7 and Chapter 15 of ITC (HS) Schedule 2, which are prohibited for export, shall be allowed to be exported under the advance authorization scheme. Export shall be allowed subject to pre-import condition under notified SION/prior fixation of norms by Norms Committee in terms of Para 4.4.2 of HBPVol.1. Import/Export would be permitted only through EDI enabled ports.

The Export obligation period (EOP) of advance authorizations issued for such items will be 90 days from the date of clearance of import consignment and no extension in EOP shall be allowed. Such import shall be subject to actual user condition and no transfer of imported raw material, for any purpose, including job work, shall be permitted. In case of non-fulfilment of EO/ non-achievement of stipulated value addition, a penalty equal to five times of the CIF value of the imported material, corresponding to the shortfall in EO, shall be imposed in addition to the applicable duty and interest.

DGFT Public Notice No. 37/(RE-2013)/ 2009-2014, Dated: November 14, 2013

VCES - CENVAT Credit and Trading - Am I eligible?

WE received this query from a Netizen,

This does not seem to be covered under the VCES as it is not ‘tax dues' as defined in Section 105 of the Finance Act, but it richly deserves to be covered under the scheme as it relates to exempted service.

Will the Board/Revenue Secretary clarify?

Tariff Values of Gold and silver reduced - Other items changed - 'Copy and Paste' Monster plays havoc

THE Government has decreased the Tariff values of Gold from 417 USD to 414 USD per 10 gms and Silver from 738 to 672 USD per kilogram with effect from 14.11.2013. Tariff values of other items except poppy seeds and areca nuts have been steeply hiked.

The Government's Notification says that the tariff value of silver will be 672 per kilogram (i.e. no change). But actually, THERE IS change. It was 738 earlier and is now 672! This is the 'copy and paste' monster at work. In fact, the comment "No Change" should have appeared against Sr. no.9, Table 2 'Poppy Seeds'.

Tariff values as on 12.11.2013 and with effect from 14.11.2013 are as under:

Table 1

Table 2

Table 3

Notification No. 111/2013-Cus (NT), Dated: November 14, 2013

Anti dumping duty on Vitamin A Palmitate - Resurrected

PROVISIONAL Anti dumping Duty was imposed on Vitamin A Palmitate originating in, or exported from, Switzerland and the People's Republic of China vide Notification No. 47/2007-CUSTOMS, dated the 28th March, 2007, which by the Notification itself had prescribed its demise date as 27th September, 2007. More than a month after its demise, Government imposed definitive anti dumping duty effective from the first date of provisional imposition that is 28.3.2007. The period 27th September to 29th October 2007, when the government was in deep slumber was regularised. Remember the days of " the King can do no wrong"

So, definitive anti dumping duty was imposed by Notification No 112/2007-Cus., Dated: October 30, 2007 with effect from 28.03.2007. This notification expired on 27.03.2012 and on this date, apparently the Board was sleeping and allowed the notification to lapse.

By 12th April 2012, they woke up and extended the validity of the notification up to 27 March 2013 by Notification No. 21/2012-Cus(ADD) dated 12.04.2012. So, there was no notification for anti dumping duty on this product from 28.03.2012 to 11.04.2012.

Now this extension also expired on 27.03.2013.

Government has now renotified anti-dumping duty on this product for five years from 13.11.2013.

Was there no dumping for eight months from 28.03.2013 to 12.11.2013? The designated Authority states, "the subject goods continue to be exported to India at dumped prices despite the existing anti dumping duties and there is a likelihood of its continuation should the existing anti-dumping duties are allowed to expire."

Who is responsible for this mess with the Country's finances?

Notification No. 30/2013-CUS (ADD), Dated: November 13, 2013

Anti dumping duty on Diclofenac Sodium - Another Resurrection

DEFINITIVE Anti dumping Duty was imposed on Diclofenac Sodium, falling under heading 2942 of the First Schedule, originating in, or exported from, People's Republic of China by Notification No.91/2008-Customs, dated 30.07.2008. This was to be effective from 10.04.2008 and to be valid till 09.04.2013.

As usual, they were sleeping on 9th of April 2013. They just woke up and extended the validity of the notification up to and inclusive of the 9th day of April, 2014.

Notification No. 31/2013-CUS (ADD), Dated: November 13, 2013

Jurisprudentiol - Tuesday's cases

Service Tax

Service Tax - transactions in lottery tickets are not liable to service tax; Superintendent's Letter quashed: HC

IN the light of Sub-Section (1) to Section 65B read with Sub-Section (44) thereof lottery is excluded from the definition of ‘service' being ‘actionable claim'; Even under Sub-Section (34) of Section 65B read with Sections 66B and 66D lottery stands excluded from the purview of service tax under the Finance Act, 2012 as being one in the ‘negative list'; The activity of the Petitioner comprising of promotions, organising, reselling or any other manner assisting in arranging of lottery tickets of the State Lotteries does not establish the relationship of a principal or an agent but rather that of a buyer and a seller and, on principal to principal basis in view of the nature of the transaction consisting of bulk purchases of lottery tickets by the Petitioner from the State Government on full payment on a discounted price as a natural business transaction and, other related features like there being no privity of contract between the State Government and the stockists, agents, resellers under the Petitioner.

Income Tax

Whether sum paid to financial consultant as Corporate Debt Restructuring fees for securing waiver of interest is to be treated as capital in nature - NO: HC

THERE was a payment of Corporate Debt Restructuring expenses to financial consultants in connection with waiver of loans. During assessment, AO had noted that assessee paid an amount to the financial consultant M/s. Brescon Corporate Advertisers Ltd., who provided their professional services in connection with the scheme of CDR by negotiating with the banks and financial institutions, which eventually helped the reduction of interest burden of the assessee. They were claimed to be the revenue expenditure aimed at reduction of recurring revenue expenditure of interest. The AO held that the assessee would derive benefit of enduring nature as a result of CDR exercise and, therefore, it was of the opinion that all the expenses are to be treated as capital expenditure and the same were needed to be disallowed and added to the income of the assessee. The issue before the Bench is - Whether sum paid to financial consultant as Corporate Debt Restructuring fees for securing waiver of interest is to be treated as capital in nature and Whether remission of loan amount taken can be taxed as a revenue receipt. And the verdict goes against the Revenue.

Central Excise

Exemption under Notification No.10/1996 CE to goods captively consumed in manufacture of Animal Feed - ‘Niacin' captively consumed for manufacture of ‘Niacin premix' - Exemption is not admissible to Niacin: CESTAT

THE appellant are manufacturing Niacin on job work basis which is again used captively for manufacture of Niacin Premix. "Niacin feed premix" classifiable under chapter heading 2309 90 90 of Central Excise Tariff Act, 1985 and liable to nil rate of duty and there is no dispute on this. However, since Niacin is used captively in the manufacture of goods which attract Nil rate of duty, revenue demanded duty on Niacin. It is the contention of the appellant that they are entitled for the benefit of exemption under Notification No 10/96 CE which exempted goods falling under Chapter 23 used captively for manufacture of Animal Feed. It is the contention of revenue that ‘Niacin feed pre-mix' by itself is not animal feed, but is added to Animal Feed. Hence the benefit of exemption under Notification No 10/96 CE is not admissible.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a Nice Day.

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