18.09.2014
Thursday
THE CBEC invites the attention of all Chief Commissioners to the decision of the Supreme Court in Super Synotex India Ltd. - 2014-TIOL-19-SC-CX on the issue of abatement of sales tax under an Abatement Scheme where the assessee was allowed to retain 75% of the sales tax collected from the buyer and was required to deposit only the remaining 25% with the State Government. Under the circumstances, the Supreme Court held that after 01.07.2000 i.e. under the transaction value regime, 75% of the sales tax retained by the assessee would form part of the assessable value.
The Board states that this is an important judgment on the issue and may be brought to the notice of the trade and the assessing officers for finalisation of similar cases.
We reported this judgement on 03.03.2014 - more than six months ago. While reporting this case DDT had observed,
An Impossible Mathematics: This is not the end of the story - calculation of excise duty and sales tax is going to be impossible. Sales tax is calculated on the value plus excise duty. Now you add up sales tax to the value, excise duty goes up and when excise duty goes up, Sales Tax goes up, part of which should again be added to value; then value goes up excise duty goes up and sales tax goes up - and so they go perennially.
A Consultant commented: Department takes settled cases to Supreme Court only with a hope to disturb the settled law..and they are successful!
CBEC Instruction in F.No. 6/8/2014-CX.1., Dated: September 17, 2014
Anti Dumping Duty on electrical insulators of glass or ceramics/porcelain
GOVERNMENT has imposed provisional Anti Dumping Duty on electrical insulators of glass or ceramics/porcelain, whether assembled or unassembled, falling under sub-heading 8546 10 or 8546 20 of the First Schedule to the Customs Tariff Act originating in, or exported from the People's Republic of China.
The Notification will be valid for a period of six months - after that it can be extended retrospectively if the Board forgets.
Revenue style of welcoming the Chinese President?
Notification No. 40/2014-Cus.,(ADD), Dated: September 16, 2014
Clearance to SEZ Developers - Amendment Retrospective
AS per Rule 6(6) of the CENVAT Credit Rules, 2004, the provisions of sub-rule (1), (2), (3) and (4) were not applicable in case the excisable goods removed without payment of duty cleared to a unit in SEZ. [Exempted and dutiable goods - obligations]
This was amended by Notification No. 50/2008 - CENT dated 31.12.2008 to stipulate that these provisions will not apply to goods cleared to a unit in SEZ or to a developer of SEZ for their authorized operations. [Developer was added]
So, the confusion about clearances to SEZ developers was sought to be put to an end. But things don't end like that in Revenue. Board by a private letter in F.No.267/52/2008-CX dated 7/1/2009, clarified that the amendment was prospective and would be applicable only from the date of the notification. So, the period prior to 31st December 2008, was a happy issue for dispute.
In a stay application reported by us in 2009-TIOL-1096-CESTAT-BANG., the Bangalore CESTAT held that the amendment was retrospective. But the Delhi Bench headed by the President did not agree in 2009-TIOL-1567-CESTAT-DEL and referred the matter to a Larger Bench. The Larger Bench headed by the same President held that a reference cannot be made to the Larger Bench based on a stay order and so the Larger Bench returned the matter to the Division Bench. - 2010-TIOL-1841-CESTAT-DEL-LB.
Any way much murky water has flowed under the tricky bridge and this matter has almost reached finality with the Tribunal and a couple of High Courts holding that the notification was clarificatory and so had retrospective effect.
These are some of the judgements:
1. UOI vs SAIL - 2013-TIOL-384-HC-CHATTISGARH-CX
2. Sujana Metal Products - 2011-TIOL-1173-CESTAT-BANG
3. Ultratech Cement - 2014-TIOL-1506-CESTAT-MUM
But the Revenue is not prepared to accept these verdicts or reason and have appealed to the Supreme Court.
In a recent judgement, the Karnataka High Court also held that the amendment has retrospective effect. Obviously, they will appeal against this decision also.
Please see 2014-TIOL-1609-HC-KAR-CX
CESTAT Slams Commissioner - Commissioner thinks CESTAT Order is a Fish Tank?
 AQUARIUM as we all know is a fish tank. Is this what the Commissioner thinks the Tribunal's order is?
In a Rectification application, the Commissioner submitted that the CESTAT Order sought to be reviewed is ‘per aquarium'.
Of course what the learned Commissioner meant was 'per incurium'.
The Commissioner alleged that the Division bench "headed by the President" failed to make out of any case.
The CESTAT President's command over Law and Language is remarkably superb and glimpses of that were visible in this order. A few samples:
1. We are of the considered view that Misc. application Nos.51246 and 53283 of 2014 proceed on a fundamental misconception of facts and law, catalyzed by uninformed assumptions of the relevant and settled principles of law and procedure. These applications have led to a wholly avoidable waste of valuable judicial time of this Tribunal and in fact have resulted in procrastination of hearing of the issues referred to the Larger Bench of five members. It is regrettable that the applicant - the CST, New Delhi has failed to comprehend the unambiguous and clear trajectory and purport of the order dated 09.09.2013.
2. The basis for the present applications (seeking review of the misc. applications dated 09.09.2013 and 05.05.2014) is ex-facie misconceived and proceeds on a basic incomprehension of these orders.
3. At the hearing today we are informed by ld. AR. that there is no extent procedure of vetting or approval of misc. applications filed by Revenue officers / Commissioners, in pending matters. While substantive appeals by Revenue are vetted by a Committee of Commissioners or Chief Commissioners, as the case may be, misc. applications including for review of orders could be filed by a party Commissioner, without verification or vetting either by a superior administrative authority or even by ARs who are authorized to appear in the Tribunal and presumed to have knowledge of the appropriate legal principles procedural principles prescriptions. Consequently applications as the present ones come to be filed on the basis of unfounded fears and on misconceived notions of law and facts.
4. As a result of this regressive practice, the CST, New Delhi has filed the two misc. applications seeking review of the misc. orders dated 09.09.2013 and 05.05.2014, without a basic understanding of the nature, scope and content of these orders nor a modicum of comprehension of the relevant and settled principles in the area. The problem is compounded by a vigorous and strenuous prosecution of these indefensible and fundamentally misconceived misc. applications by learned ARs, who have defended these misc. applications with more heat than light'; more dogma than logic or law; and substituting the need for subtrating a case with settled precedential authority and forensic skills, with a vigour expressed in higher decibels sans legal analyses.
5. We are therefore constrained to record our observation that interests of the State and of Revenue are inadequately served by (such) wholly deficient comprehension spelt out in executive processed and presented appeals / applications, of the applicable principles of law and procedure; and unproductively drain scarce time and resources of CESTAT. We hope and trust that administration will take due note of such litigative pathologies and usher in appropriate measures to augment the quality of Revenue representation before CESTAT.
We bring you this order today. Please see 2014-TIOL-1782-CEST AT-DEL
FTP - SION for Namkeens
DGFT has notified Standard Input Output Norms (SION) for Namkeens/Mixtures/Savouries. DGFT has decided that for a Kg of namkeens/Mixtures/Savouries, you will need 600 gms of cereal flakes, green peas etc, 280gms of oil, 10gms of additives and 60 gms of flavours in addition to packing materials.
DGFT Public Notice No.69/(RE-2013)/2009-2014, Dated: September 16, 2014
Self Certification in CBEC
THE Revenue Department has written to all the Chief Commissioners and DGs in CBEC that Government of India is keen to promote self-attestation/certification instead of attestation by a Gazetted Officer/furnishing of affidavit so as to avoid unnecessary harassment to the Public.
So it is directed that in respect of all copies of documents hitherto requiring certificate/attestation by a Magistrate or Gazetted Officer, Self Certification by the applicant should be treated as sufficient, subject to production of the original certificates as and when required.
It should be admitted fairly that the Revenue Departments rarely ask for any attested copies and in any case if you walk into any Commissionerate, you will see at least a hundred Gazetted Officers around.
MoF Dept of Revenue F. No. A-60011/21/2014-Ad.IIB, Dated: September 04, 2014
Aadhar Based Biometric Attendance Monitoring System (BAMS) for CBEC Offices
A process of Biometric Attendance Monitoring System (BAMS) linked to Aadhar card is to be initiated in respect of field offices of the CBEC.
CBEC had written to all the field offices about the System and asked for Compliance Reports - as usual nobody responded and Board has requested for the same again.
And yesterday the Board again wrote to all the offices asking for information whether the offices have Internet connection and the details of the employees.
Board has asked for information from 31 offices in New Delhi - God knows when it will get the information from all these offices.
After cadre review, perhaps they will have to ask some officers to stay at home as there will not be enough space for all the officers.
CBEC F.No.A.26017/85/2014/Ad.II-A, Dated: September 16, 2014 (2) and CBEC F.No.A.26017/85/2014/Ad.II-A, Dated: September 17, 2014
"world's factory" and "world's back office"
INDIA is advanced in IT and pharmaceutical industries, and Indian companies are welcome to seek business opportunities in the Chinese market. The combination of the "world's factory" and the "world's back office" will produce the most competitive production base and the most attractive consumer market.
XI JINPING - President of China
Jurisprudentiol – Friday's cases
 Central Excise
Rebate on goods exported to overseas subsidiary - Revenue cannot restrict rebate on value under Section 4 of Central Excise Act - Market Price under condition "e" of Notification No 19/2004 CE(NT) is export market price - Not Indian Market price - Allows rebate of 23 crores to Dr Reddy's Labs: HC
THIS petition relates to two rebate claims of Rs.21,18,36,117 and Rs.1,75,57,537, made under the Central Excise Act, 1944 before the Deputy Commissioner of Customs and Central Excise. The petitioner, Dr. Reddy's Laboratories Ltd. claimed this rebate for refund of excise duty paid earlier by it on the export of certain pharmaceutical products to their overseas subsidiary. The refund was allowed by the Deputy Commissioner. Later, proceedings were initiated before the Commissioner of Customs, Central Excise and Service Tax (Appeal II) for recovery of the refunded amount, on the ground that the rebate amounts refunded were in excess. The Commissioner (Appeals) allowed the appeal by revenue and the Revision Application filed by the exporter was dismissed by the Revisional Authority. Hence this Writ Petition was filed.
Income Tax
Whether High Court has discretion not to exercise its judicial review powers in writ petition filed by assessee, when conduct of assessee himself is tainted and doubtful - YES: HC
THE assessee, a famous Bollywood film producer, filed his Return of Income for the AY 1990-91, declaring a loss on account of film - 'Shehzaade' produced by him. In his Return of Income, the assessee had disclosed his address in Mumbai. The AO served notices u/s 143(2) on several dates which were returned unserved by the postal authorities. After investigation, it was known that the assessee had settled in Dubai and accordingly, the AO passed a best judgment assessment on 19th March, 1993. The assessee claimed that he came to know of this assessment order in 2003 from the Tax Recovery Officer and obtained a copy of the order on 5th January 2004. In July 2004, the assessee filed a revision application u/s 264 challenging the assessment order with the argument that since the assessment order was received by the assessee in 2004, this application was within the limitation period. The Commissioner vide its order dated 30th March, 2006 had refused the application stating that it was time barred as the assessment order was communicated to the assessee on April 1st 1993 and a xerox copy of the acknowledgment received from the postal authorities was also shown to the assessee. Aggrieved, the assessee filed this writ petition challenging the Commissioner's order in 2006.
The issue before the Bench is - Whether High Court has the discretion not to exercise its judicial review in the writ petition filed by the assessee, when the conduct of the assessee himself is tainted and doubtful. And the verdict goes against the assessee.
Service Tax
As provision of telecommunication service to international roamers would amount to export of service, refund is permissible in law - Revenue appeal dismissed: CESTAT
REVENUE is in appeal before the CESTAT against the order passed by the lower appellate authority sanctioning refund of Rs.36,44,18,798/- to the respondent by allowing their appeal. The refunds were sanctioned pursuant to the decision of the Tribunal in the respondent's own case reported in 2013-TIOL-566-CESTAT-MUM wherein it was held that the provision of telecommunication service to international roamers would amount to export of service.
The AR submitted that provision of roaming facility to international roamers travelling in India would not amount to export and, therefore, the refunds/rebates are not permissible in law.
See our Columns Tomorrow for the judgements
Until Tomorrow with more DDT
Have a nice day.
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