10.11.2014
Monday
THE BACKDROP:
CBEC in Circular No. 495/61/99-CX.3 dated 22.11.1999 clarified:
It has been brought to the notice of the Board that field formations are demanding duty on the compound preparation arising during the course of manufacture of Agarbathi classifying them under heading 3302.90 of the Central Excise Tariff as odoriferous compound.
2. The matter has been examined in the Board. The Agarbathi manufacturing process involves simple mixing of a few aromatic chemicals with a base oil in a container in liquid form which is mixed directly with the dough or applied on Agarbathi in the required proportion and such dough, mixed with the aromatic compound; is used for rolling of Agarbathi. The Agarbathi manufacturers normally carry out the whole process in a continuous manner in the course of manufacture of Agarbathi.
3. Moreover, each brand of Agarbathi has a different fragrance which is on account of the different formulation used by the manufacturers which is specific to that particular brand. Preparation of such odoriferous compound, substances applied on the Agarbathi varies from one Agarbathi manufacturer to another. Such preparations are not sold by them in the market so as to keep their respective trade secrets. As the constituents, their proportions and formula of preparation are kept as secret, such compounds cannot be considered to be marketable in the commercial parlance.
4. Accordingly, it is clarified that the odoriferous compound or Agarbathi dough mixed with odoriferous substances, not being capable of being bought and sold in the market in the normal course of trade, is not an excisable product and no duty is therefore, leviable on such compound arising during the course of manufacture of Agarbathi.
Following this Circular, Karnataka Soaps and Detergents Ltd, who were paying duty on stock transfer of certain odoriferous compounds to their own unit, stopped payment of duty with effect from April 2000. This was accepted by the Department for some time, but in November 2005 some wise officers felt that Board was wrong and so issued Show Cause Notices to the assessee - Karnataka Soaps. As usual the Adjudicating Authorities confirmed the demand with Odoriferous penalties.
The Tribunal observed - 2011-TIOL-520-CESTAT-BANG, "In our considered view, the board has taken a view which is applicable to the entire length and breadth of India and it cannot be so easily brushed away by the departmental officers ........ In our considered view, the Board Circular will apply in its full force to the case in hand before us at least to the agarbathi perfumery compounds wherein revenue has not produced any evidence of they being bought and sold."
The love of litigation took the Revenue to the Supreme Court, where the case is pending.
Fifteen Years after the Circular was Issued: New wisdom dawned in the dark corridors of power and Board has now clarified:
It has been reported that some manufacturers of such odoriferous compounds have claimed non- excisability on the ground that such compounds are a trade secret, not sold in the market and hence not excisable. This is despite the fact that such compounds have shelf life and are capable of being marketed as a distinct identifiable commodity.
It may be noted that Section 2(d) of the Central Excise Act, 1944 has been amended in 2008 to insert a deeming fiction regarding marketability. Specific cases have been detected, where intermediate masala mix has been found to be actually bought and sold. It is therefore clarified that Board's Circular No. 495/61/1999-CX.3 dated 22.11.1999 is applicable only to such intermediate compound or odoriferous compounds as are not capable of being bought and sold. In cases where on the basis of evidence it is established that such intermediate compounds are capable of being marketed, the same will be excisable, irrespective of whether the compound is actually marketed or not.
Why did the Board wait for fifteen years to clarify this position and why did the Board take the matter to the Supreme Court when an assessee had followed its own circular?
How much money are they going to get from the agarbathi (perfumed incense stick) manufacturers as excise duty on the secret odoriferous compounds? Even if it is excisable and dutiable, shouldn't it be exempted - and what is the cost of litigation?
And what about the other stick industry - cigarette?
CBEC Circular No. 989/13/2014-CX.3, Dated: November 7, 2014
FTP - Revision in Import Policy for Natural Sand.
GOVERNMENT has amended the import Policy of Chapter 25 of ITC (HS) 2012, Schedule 1 (Import Policy), which revises the Import Policy of ‘Natural Sands'. Now, import of sand will be subject to Plant Quarantine (Regulation of Import into India) Order, 2003.
DGFT Notification No. 97(RE - 2013)/2009-2014, Dated: November 7, 2014
FTP - 'Haats Off' to India Bangladesh Border Bazaars
DGFT has made arrangements for the operation of Border Haats across the border between India and Bangladesh:
The following commodities will be allowed to be traded in the Border between India and Bangladesh at the new Border Haat at Srinagar, Tripura - between Purbo Madhyagram (India) and Chhoighoria (Bangladesh):
i. Locally produced vegetables, food items, fruits, spices;
ii. Minor local forest produce e.g. bamboo, bamboo grass and broom stick but excluding timber;
iii. Products of local cottage industries like Gamcha, Lungi etc;
iv. Small locally produced agriculture household implements e.g., dao, plough, axe, spade, chisel etc;
v. Locally produced garments, melamine products, processed food items, fruit juice, etc.
DDT 1963 - 16.10.2012, noted, Haats are weekly rural bazaars that happen on a weekly basis across thousands of villages in India. We talk so much of FDI in retail and WalMart, but these Haats of India have more retail outlets than WalMart and they offer a variety that the best of WalMart stores can never dream of providing. With most rural people being regular visitors to Haats (including about 40% women), these Haats can if properly used, change the political and economic scenario of the country. And no WalMart can drive out these Haats.
DGFT Public Notice No. 72/2009-2014 (RE-2013), Dated: November 7, 2014
CESTAT (PROCEDURE) RULES - Amended - 'Stay' Still in Vogue?
THERE is a general opinion that for cases decided after 6.8.2014, Stay applications need not/cannot be filed before CESTAT as there is no waiver of pre-deposit and a mandatory pre-deposit has to be made.
But obviously there are still issues which may require a Stay like suspension of a Customs Brokers Licence.
The CESTAT President has amended the CESTAT (Procedure) Rules, 1982.
Rule 28A(1)(a) of the Rules before the amendment read as:
Every application preferred under the provisions of the Acts for stay of the requirement of making deposit of any duty demanded or penalty levied shall be presented in triplicate by the appellant in person or by his duly authorised agent, or sent by registered post to the Register or any other office authorised to receive memoranda of appeals, as the case may be, at the Headquarters of the Bench having jurisdiction to hear the appeal in respect of which the application for stay arises:
Now this is amended to read as:
Every application preferred under the provisions of the Acts for stay of the operation of impugned orders dealing with refund, under CHA Licensing Regulation, Warehousing, etc shall be presented in triplicate by the appellant in person or by his duly authorized agent, or sent by registered post to the Registrar or any other officer authorized to receive memoranda of appeals as the case may, at the Headquarters of the Bench having jurisdiction to hear the appeal in respect of which the application for stay arises.
Now there is no CHA Licensing Regulation - it is called the Customs Brokers Licensing regulations.
The need for Stay application in refund cases: Refunds are usually rejected or sanctioned by an Assistant Commissioner. If the Commissioner (A) sets aside the refund order of an Assistant Commissioner, is it necessary to file a Stay Petition before the CESTAT. Maybe without the Stay, department may proceed to recover the ‘erroneous' refund if already paid to the assessee.
CESTAT NOTIFICATION NO. 01 OF 2014, Dated: November 7, 2014
Non-adversarial Tax Regime - No appeal just because monetary limit is crossed - CBDT Guidelines
ON several occasions the Finance Minister has emphasised the need for furthering a non-adversarial tax regime. A non-adversarial tax regime cannot be achieved without concerted endeavour at each level, especially at levels where the public interaction is high. Though the Central Board of Direct Taxes (CBDT) has issued instructions from time to time on some of these issues, there is a need for consolidation of earlier instructions and issuance of further directions in this regard. Accordingly, CBDT has issued guidelines for achieving such objective:
1. Cleanliness and punctuality to be maintained.
2. Appointment given to the public must be honoured and such appointments should not be cancelled or postponed without any unavoidable reason, especially when the assessee/representative is willing to attend.
3. Range Heads are required to ensure that frivolous additions or high-pitched assessments without proper basis are not made.
4. Ordinarily in scrutiny cases selected on the basis of AIR/CIB/26AS information, the scrutiny shall be limited to that information. Wider scrutiny would be possible only with the sanction of Principal Commissioner of Income-tax/ Commissioner of Income-tax in specified cases and under the monitoring of the Range Head.
5. Withholding of refunds due to mismatch of TDS data has been sought to be remedied through grant of credit on the basis of evidence submitted by the assessee.
6. In cases of remand, the Commissioners of Income-tax (Appeals) should specify the aspect which needs to be verified. The practice of forwarding the entire documents/submission of the assessee for comments of the Assessing Officers should cease.
7. Threshold limits have been set for appeals to ITAT, High Courts and Supreme Court at Rs. 4 lakhs, Rs. 10 lakhs and Rs. 25 lakhs, respectively. This, however, does not imply that appeals above these amounts have to be necessarily filed. Where the tax effect is above these amounts, the officer concerned is enjoined with the duty to ensure that the same is filed only if it is feasible to so do on merits of the case.
8. A review of the proposals for filing SLPs reveals that in most of the cases, the decision to file a reference before the High Court itself was not in order. No substantial question of law existed or the question of law was not correctly drafted. Hence, in stations having more than one Chief Commissioner of Income-tax (CCIT) the decision to file a reference before the High Court will be taken by two CCsIT including the CCIT in whose jurisdiction the matter lies.
9. Any regime where taxpayers' grievances are not attended to in time may be considered adversarial. All the supervisory authorities are directed to ensure that the grievances are disposed off within the specified time period.
10. The issue of summons without adequate caution and due application of mind has caused concern to the Board. Supervisory authorities have to ensure that the summons are issued only in deserving cases. Summons should also clarify if the person has been called as a witness or in his own case, and the matter for which he has been called.
CBDT Instruction in F. No. 279/Misc./52/2014-(ITJ), Dated: November 07, 2014
From Harvard to Hazaribagh to North Block
 THE Finance Ministry was badly missing the Harvard touch after the exit of P. Chidambaram and now Prime Minister Modi has filled the gap. Meet the Harvard MBA, Delhi IITian and MS from University of Pennsylvania - Jayant Sinha, 51 year old first time MP from Hazaribagh who is India's new Minister of State for Finance. His father Yashwant Sinha is a former Finance Minister of India - this is the first time that a father and son have become Finance Ministers, though Sinha junior is only a junior minister
By profession the technocrat turned manager is an investment fund manager. His income as per last year's Income Tax Return was Rs. 3.7 Crores.
It is nice to see a very highly educated professional with brilliant academic records and well to do financially becoming a Finance Minister.
TIOL wishes him all the best.
Minister with a CE Penalty: It is heard that there is a Union Minister who had been imposed a penalty of Rs. 10 lakhs by a Central Excise Commissioner. The penalty is under Stay by CESTAT.
Jurisprudentiol-Tuesday's cases
 Service Tax
Refund - Commissioner (A) has given strange reasons to deny appellant benefit - he is not taking consistent stand in his reasoning - he has not read apex Court decision in India Tobacco Asscn. in proper perspective - Notification 21/2009-ST does not have retrospective effect - Appeal allowed: CESTAT
THE appellant, a Company incorporated in France, with representative office in Mumbai entered into two contracts with ONGC for seismic surveys for Oil and Natural Gas in blocks/sites awarded by Government of India in the Eastern and Krishna Godavari basin Areas Offshore India.
The appellants were asked to pay Service Tax of Rs.7.44 crores which they paid under TR-6 Challans marked "Under protest" for the period 1.4.2006 to 18.4.2006.
This amount was claimed as refund but the same was denied by the adjudicating authority.
Income Tax
Whether in absence of certainty about rate of surcharge because of uncertainty about date with reference to which rate is to be applied, it can be said that surcharge as per existing provision of Sec 113 was leviable on block assessment qua undisclosed income - NO: SC
THE assessee was engaged in real estate business and its assessment was completed under block assessment proceedings. As per the proviso inserted to Section 113 of the Income Tax Act vide Finance Act, 2002 the tax chargeable under the said Section shall be increased by a surcharge, if any, levied by any Central Act and applicable in the assessment year relevant to the previous year in which the search is initiated under Section 132 or the requisition is made under Section 132-A of IT Act. However, there was no clarity as to the date with reference to which the rate of surcharge was to be levied. The dispute was regarding the issue whether this levy of surcharge brought through Finance Act, 2002 was prospective or retrospective in operation.
The issue before the Bench is - Whether in the absence of certainty about the rate of surcharge because of uncertainty about the date with reference to which the rate is to be applied, it can be said that surcharge as per the existing provision of section 113 was leviable on block assessment qua undisclosed income. And the answer is NO.
Central Excise
Demand of 10% under Rule 6 of CENVAT Credit Rules on Petroleum gases returned to refinery in terms of Notification No 4/2006 CE dated 01.03.2006 and 12/2012 dated 17.03.2012 - Show Cause Notice set aside: HC
AGAINST Show Cause Notice issued by the department, the assessee filed this Writ Petition before the High Court challenging the notice. The assessee is engaged in manufacture of Poly Iso Butylene. The main input for the product is Poly Butylene Feed Stock (PBFS), which is manufactured and supplied to the petitioner by Chennai Petroleum Corporation Ltd. After extraction of Poly Iso Butylene, 83% of the feedstock is sent back to the supplier refinery. As per Notification No 157/89 CE, later continued vide Notification No 4/2006 CE and 12/2012 CE, duty leviable as is in excess of the duty on gas consumed in the manufacture of Poly Iso Butylene is exempted. The gas consumed is computed by subtracting the quantity of gas received back by the refinery from the gas supplied.
It is the case of the department that the assessee is manufacturing both dutiable and exempted goods, (goods which are returned to the refinery) in terms of Rule 6 of the CENVAT Credit Rules, they are liable to pay 10% amount as they failed to maintain separate accounts for CENVAT Credit.
On the question of maintainability of a Writ Petition against Show Cause Notice in view of the alternate remedy, the High Court held that where the Show Cause Notice is issued without jurisdiction or where there is an abuse in process of law, the Petition would be maintainable and proceeded to examine the issue on merits.
See our Columns Tomorrow for the judgements
Until Tomorrow with more DDT
Have a nice day.
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