TIOL-DDT 2385
30.06.2014
Monday

VIDE Notification No. 8/2014-CENT dated 28.2.2014, Rule 9 of the Central Excise Rules 2002 was amended to make it mandatory for an importer who issues an invoice on which CENVAT Credit can be taken, to get registered.

As per Notification No. 9/2014-CENT dated 28.2.2014, Registered importer is required to file a quarterly return in the Form prescribed.

As per Notification No. 10/2014-CENT dated 28.2.2014, Importer was included in the Registration Application Form.

As per Notification No. 11/2014-CENT dated 28.2.2014, Quarterly Return Form is prescribed for first stage/ second stage dealer or the registered importer.

Now if an importer deals with indigenous goods also, should he get registered as a dealer and separately as an importer? Should he get a new registration as an importer even if he is already registered as a dealer? The Mumbai Chief Commissioner of Central Excise says, YES.

In a clarification issued to the President of ‘The Chemical& Alkali Merchants Association', Mumbai, the Chief Commissioner, Mumbai-II Zone clarifies:

Many assessees feel that these are more of directions than clarifications and complicate the issue further. They feel that this could not have been the intention of the Board and the Government. Why should you tie up the assessee with more and more procedural wrangles? They expect the Board to clarify.

Also please see DDT 2306 /04.03.2014 & DDT 2342 /29.04. 2014.

Mumbai-II Chief Commissioner's F. No. IV/16-24/CCO-II/MCX/2014, Dated: April 07, 2014

VCES, 2013 comes to an end…well, almost

THE VCES, 2013 publicity comes to an end today. Not a single newspaper or tax portal, big or small, is without the VCES advertisement panel - I NEVER DELAY IN ACTION.

Section 107 of the FA, 2013 relating to the Service Tax Voluntary Compliance Encouragement Scheme mentions the following -

(3) The declarant shall, on or before the 31st day of December, 2013, pay not less than fifty per cent, of the tax dues so declared under sub-section (1) and submit proof of such payment to the designated authority.

(4) The tax dues or part thereof remaining to be paid after the payment made under sub-section (3) shall be paid by the declarant on or before the 30th day of June, 2014:

Provided that where the declarant fails to pay said tax dues or part thereof on or before the said date, he shall pay the same on or before the 31st day of December, 2014 along with interest thereon, at such rate as is fixed under section 75 or, as the case may be, section 73B of the Chapter for the period of delay starting from the 1st day of July, 2014.

So, if you wish to settle your service tax dues under the VCES, pay the balance 50% or whatever is left by the end of the day else you will be required to pay interest.

Why wait for another day if you can settle the tax dues today itself!

Whereas the Service Tax assessees who settled their tax dues under this VCES, 2013 are a happy lot, the Central Excise assessees and importer/exporters etc. are awaiting their turn.

They expect acche din to come knocking and are keeping their fingers crossed eager to welcome a brand new KVSS this season!

Inter-Governmental Agreement (IGA) with USA under Foreign Accounts Tax Compliance Act (FATCA)

INDIA and US have reached an agreement in substance on the terms of an Inter-Governmental Agreement (IGA) to implement FATCA and India is now treated as having an IGA in effect from April 11, 2014. However, IGA would be signed only after the approval of Cabinet.

In this connection, RBI advises Financial Institutions to take note of the following:

a. Indian Financial Institutions would have time upto December 31, 2014 to register with US authorities and obtain a Global Intermediary Identification Number (GIIN).

b. Indian Financial Institutions having overseas branches in Model 1 jurisdictions, including those jurisdictions where an agreement under Model 1 has been reached in substance would have time upto December 31, 2014 to register with US authorities and obtain a GIIN. Since IGA would be signed after obtaining the approval of the Cabinet, such financial institutions having overseas branches in Model 1 jurisdictions should register only after the formal IGA is signed. This will be communicated in due course.

c. Overseas branches of Indian Financial Institutions in a jurisdiction having IGA 2 agreement or in a jurisdiction that does not have an IGA but permits financial institutions to register and agree to an FFI agreement, may register with US authorities and obtain a GIIN before July 1, 2014, to avoid potential withholding under FATCA.

d. Overseas branches of Indian Financial Institutions in jurisdiction that does not have a IGA and does not permit financial institutions to register and agree to an Foreign Financial Institution (FFI) agreement may not register and their overseas branches would eventually be subject to withholding under FATCA.

e. GoI has further advised that if registration of the parent bank/ head office is a pre-requisite for a branch to register, such banks may register as per the time line indicated at (b) and (c) above.

RBI's DBOD. AML. No. 20472/14.07.018/2013-14, Dated: June 27, 2014

Revenue appeals against an order in its favour - This sort of mindless action by Revenue does attract levy of cost - ITAT

NORMALLY you appeal to the Tribunal against an order of the Commissioner if you are aggrieved by it, but here is a case where the Revenue has appealed to the ITAT against an order in its favour!

The AO noticed that the assessee was deducting TDS on software development, u/s. 194C but not u/s. 194J as required. A.O. noticed that the software development charges in India in fact were the payments towards technical services/fees and liable for TDS u/s. 194J. After examining the agreement copies with the companies with which assessee entered into agreement for the A.Y. 2004-05 for software development services, A.O. concluded that expenditure was fees for professional services and technical services and covered by section 194J of the Act and accordingly calculated the tax and interest.

Even though the CIT(A) confirmed the action of the A.O. to the extent of application of provisions of section 194J, surprisingly Revenue has raised the grounds as under in its appeals in to the ITAT:

1. The order of the CIT(A)-II is erroneous and prejudicial to the interest of the revenue.

2. The CIT(A)-II, Hyderabad has erred in not deciding the core issue of the provisions of the Act with regard to applicability of section 194C or 194J which covers such payments impugned in appeal.

The ITAT noted,

As can be seen from the order of the Ld. CIT(A), Ld. CIT(A) upheld the contention of the A.O. that the amounts are covered by the provisions of section 194J. In fact, assessee also preferred the appeal on the same issue. We are surprised that Revenue is contesting on an issue which was decided in its favour, which indicates the non-application of mind not only by the A.O. but also by the Ld. CIT-(TDS), who approved the filing of appeal. This sort of mindless action by the Revenue does attract levy of cost. However, we refrain from doing so. We advise the Revenue authorities to apply their mind before preferring appeals to ITAT. Revenue appeals, therefore, are infructuous and accordingly dismissed.

The Revenue Departments are not influenced by such strictures by Courts - only stiff, quick and exemplary punishment can set right things.

Please see 2014-TIOL-389-ITAT-HYD

2,15,174 appeals pending with Income Tax Appellate Commissioners

AS on 1.4.2014, there are 2,15,174 appeals pending with Commissioners of Income Tax (Appeals) and the Income Tax Department's target is to clear 95,560 of these appeals during the Financial Year 2014-15 as per the Central Action Plan 2014-15.

The Board wants the appeals to be categorised into the following baskets:

(i) Basket-1 (B-1) - All High Demand (HD) Appeals (appeals involving disputed demand of Rs.10 lakhs or above) pending as on 01.04.2014. This would further be sub-divided in Baskets B-1A and B-1B for reporting purpose:

(a) B-1A: High Demand appeals instituted before 01.04.2013.

(b) B-1B: High Demand appeals instituted between 1.4.2013 and 31.3.2014

(ii) Basket-2 (B-2) - All appeals other than High Demand appeals filed before 01.04.2013.

(iii) Basket-3 (B-3) - All appeals other than High Demand appeals filed between 01.04.2013 and 31.3.2014.

(iv) Basket-4 (B-4) - All appeals filed in the current year i.e. those filed on or after 01.04.2014. This would be further sub-divided in Baskets B-4A and B-4B for reporting:

(a) B-4A: High Demand appeal instituted during the current year.

(b) B-4B: Other appeals instituted during the current year.

The highest priority is to be given to Basket B-1 and least to Basket-4.

CsIT (A) are advised to plan their work so as to dispose off at least 90% of B-1 category appeals during the year. Target of other than B-1 category appeals should be met by disposing at least 80% of B-2 category appeals. However, the CIT (A) can take up any case on priority, if so requested by the CCIT concerned and such high demand appeals will carry a weightage of disposal of 2 appeals.

Board wants the Pr.CCIT to ensure that every CIT(A) should be assigned 150 B-1 category appeals.

From CBDT's Central Action Plan 2014-15

Quality Scrutiny Assessment

'QUALITY Scrutiny Assessment' is one where collection of all relevant facts and evidences is done through enquiries and investigation processes, on each relevant point and issue, in a complete manner, following due process of the law and procedure, after granting due opportunity to the assessee and after consideration of its view points and arguments, through a speaking and analytical narration of facts, arguments and evidences that are finally capable of withstanding the test of judicial scrutiny. Such assessment should be ‘zero-error' from audit point of view especially in relation to calculation of tax, interest, depreciation etc. and application of relevant provisions of law.

The feedback received from field formations on the quality aspect of cases disposed-off during the last few years has not been very encouraging.

From CBDT's Central Action Plan 2014-15

Central Excise Inspectors National Convention

THE 18th national convention of All-India Central Excise Inspectors' Association (AICEIA) was held this weekend in Trivandrum. Anupam Neeraj of Kolkata and Abhishek Kamal of Patna were elected as the new National President and Secretary-General of the Inspectors Association. The clever inspectors invited BJP leader O. Rajagopal to inaugurate the convention. Politically correct.

RBI is open tomorrow

IN order to facilitate the settlement of market transactions, as also, to aid the transactions of the general public, the Reserve Bank of India has decided that it will remain open even for public transactions on July 1, 2014. Normally, the Reserve Bank remains closed for public transactions every July 1 on account of its annual closing of accounts. The Reserve Bank's accounting year is July to June.

In view of the annual closing of its books of account, however, on July 1, 2014 -

1. services, such as, RTGS/NEFT, transfer of funds and settlement of securities will be available from 12:00 noon onwards;

2. settlement of funds as well as securities for all transactions that settle on T+0 basis will be effected from 12:00 noon onwards;

3. settlement of all outstanding transactions under the Reserve Bank ' s liquidity adjustment facility(LAF)/marginal standing facility(MSF) due for reversal will take place at 12.00 noon on that day; and

4. the morning LAF window will operate between 12.30 p.m. and 1.30 p.m.

RBI Press Release, Dated: June 27, 2014

The International Day against Drug Abuse and Illicit Trafficking - in Chennai

NACEN, Chennai along with the Central Excise and Customs Commissionerates organised an Awareness Seminar on Drug Abuse and an Awareness Run on the Marina Beach.

Noted journalist N. Ram, Chairman of Kasturi and Sons Limited, who was the chief guest, called for an informed, science-based discussion on reducing the harm caused by drug abuse.

S. Ramesh, Chief Commissioner of Customs, M. Ponnuswamy, Additional Director General, NACEN, and M.M. Parthiban, Additional Director General, Directorate of Revenue Intelligence, also addressed the meet.

Jurisprudentiol – Tuesday's cases

Customs

Purchase order as well as the invoice were available at time of filing Bill of entry, therefore, as per CBEC Manual, amendment in Bill of entry is required to be allowed although goods have been given out of charge - appeal is allowed with consequential relief: CESTAT

++ EVERY organization (including this Tribunal) has its own procedure to process various documents. This process takes its own time.

++ Like in the present case, this Tribunal's order is required to be examined in the Custom House at different levels and finally a decision has to be taken whether to accept the order of the Tribunal or challenge the same before the Hon'ble Court and also whether to file stay petition.

++ We must respect the procedure being followed in every organization and also not put any organization in different direction or change their priority.

++ Of course, if any lower authority is not implementing orders passed by this Tribunal, appellant can bring that to the notice of the Tribunal and there are adequate provisions and powers with this Tribunal to ensure implementation of its order.

++ However, directing the lower authority to implement the order in a particular time frame at the time of issuing order itself is not appropriate.

++ Such a direction of the Tribunal would be affecting the normal working of the Custom House and also put avoidable and uncalled pressure on officers dealing with the subject.

Income Tax

Whether when assessee itself is contractor of IOCL for transportation of LPG cylinders, hiring of truck owners for executing contract is to be construed as sub-contract liable for TDS u/s 194C - YES: HC

THE assessee is engaged in the business of purchase and sale of LPG cylinders. The AO noticed that the main contract of the assessee for carriage of LPG was with the Indian Oil Corporation, Baddi. The assessee had received the total freight payments from the IOC Baddi to the tune of Rs. 32,04,140/-. The assessee had, in turn, got the transportation of LPG done through 3 persons. The A.O. observed that the assessee had made a sub-contract with the given three persons within the meaning of section 194C and, therefore, he was liable to deduct tax at source from the payment. On account of his failure to do so, the said freight expenses were disallowed by the A.O. as per the provisions of Section 40 (a) (ia).The CIT(A) & the Tribunal upheld the AO order.

The issue before the High Court is - Whether when the assessee itself is a contractor of the IOCL for transportation of LPG cylinders, the hiring of truck owners for executing the contract is to be construed as sub-contract liable for TDS u/s 194C. And the verdict goes against the assessee.

Central Excise

Credit taken on extra copy of invoice, Xerox/photocopy is inadmissible as these are not prescribed documents under rule 9 of CCR, 2004 - in order to claim benefit under the law, substantial compliance is not enough and procedures prescribed in statute should be mandatorily followed: CESTAT

CENVAT credit of Rs.1,08,263/- was denied to the appellant by the lower authorities on the ground that the documents on the strength of which credit has been taken were not specified under the Rules.

The appellant is before the CESTAT and submits that the only ground for denial is that they had taken credit on the basis of extra copy, Xerox/photo copies of the duty paid documents; otherwise there is no finding to the effect that the appellant is not eligible for credit. For contending that denial of CENVAT Credit for procedural infraction is not permissible in law, the appellant relied on a plethora of decisions. Another plea taken is that the SCN was issued in December, 1994 and adjudication was done only in the month of February 2007 i.e. after a hiatus of 12 years and on this ground alone the proceedings needed to be set aside.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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