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19.12.2014
Friday
2500 editions of tax issues - DDT is grateful to all the Netizens for their support and patronage. DDT is grateful to the Government, without whose continuous flow of inexactitudinallaw making, DDT would not have been possible. During this week in a hearing before the Larger Bench of the CESTAT, lawyer after lawyer was criticising the draftsman who created some confusing law which was ultimately passed by Parliament. The President of the Tribunal observed, "it is only because of him, we are all here."
In all these 2500 editions, DDT's aim was to translate the babu made law into plain English - to what extent the mission was successful is for the Netizen to decide. While DDT is perceived to be harsh and uncharitable in its criticism of the tax administration, (an officer told me that the DDT pen is dipped in vitriol) especially by those at the receiving end and their friends, ultimately it has been realised that we are not adversaries but partners in the progress towards a better tax regime. Even the Tax Administration Reform Commission (TARC) consisting of hard-core revenue officers found a DDT worth incorporating in their report.
Within the mortal limits of modesty, I must admit that doing DDT on a daily basis for 2500 days was not easy; every night was filled with fear as to what DDT can carry the next day. On a daily basis, I was sure that DDT will not come the next day and I will lose my job but it did for 2500 days! I am grateful to my Managing Editor who would not allow a break in DDT and the Team TIOL who kept it alive.
As the Supreme Court says in a judgement (covered in this column today), "Every day is a matter of learning"
I know you don't come to this page to read about DDT; so let's get along with business as usual…….
Service Tax - Audit by CAG - Supreme Court Stays Delhi High Court Judgement in Travelite
NETIZENS will remember that the Delhi High Court in the case of M/s Travelite (India) - 2014-TIOL-1304-HC-DEL-ST, held that any attempt to include provision for such a general audit through the back-door, such as through the impugned rule, is ultra-vires the rule making power conferred under Section 94(1). Rule 5A(2) was consequently struck down.
Board had just clarified in Circular No. 181/2014, dated 10.12.2014 that "the Hon'ble High Court of Delhi in the judgment dated 04.08.2014 in the case of M/s Travelite (India) - 2014-TIOL-1304-HC-DEL-ST had quashed rule 5A(2) of the Service Tax Rules, 1994 on the ground that the powers to conduct audit envisaged in the rule did not have appropriate statutory backing. This judgment can now be distinguished as a clear statutory backing for the rule now exists in section 94(2)(k) of the said Act."
Several Netizens have written to say that since the Board has agreed that prior to 6.8.2014, there was no power to audit as the Rule 5A(2) itself was void, all the audits done prior to 6.8.2014 were illegal. But nothing can be done against such illegal audits already completed as Show Cause Notices will still be valid and whatever illegal gratification is paid was and is always illegal and there is no refund mechanism for such payments.
Anyway Government has won the first round. Yesterday they got a stay from the Supreme Court. The issue is taken seriously by the Government and the case was argued by the Attorney General. Supreme Court has stayed the operation of the impugned judgment and order of the High Court.
Please see 2014-TIOL-101-SC-ST-LB
Foreign Exchange - Conversion Rate - CBEC corrects overvaluation of YEN
IT was only yesterday that DDT reported the CBEC faux pas in overvaluing the exchange rate of Japanese YEN by a hundred times.
The Board was quick to act and yesterday itself they rectified the mistake by issuing a corrigendum.
Actually the corrigendum and the notification had only a day's shelf life as Board has again issued another notification prescribing exchange rates for major currencies effective from today.
The new exchange rate for 100 YEN for import is Rs. 54.05 and US Dollar is at Rs. 63.85.
It is gratifying to note the super fast rectification by the Board.
CBEC Corrigendum in F. No. 468/01/2014-Cus.V, Dated: December 18, 2014
Notification No. 116/2014 -Cus.,(N.T.), Dated: December 18, 2014
Norms for Execution of Bank Guarantee in respect of Advance License/Export Promotion Capital Goods (EPCG) Schemes - Board relaxes condition
PARA 3.2(c) of the Circular No. 58/2004-Cus.dated21.10.2004 inter alia stipulates that exemption from Bank Guarantee contemplated therein will not be available in case the licence holder has been penalized under the provisions of Customs Act,1962, the Central Excise Act,1944, the Foreign Exchange Management Act (FEMA),1999 or the Foreign Trade (Development and Regulation) Act, 1992 during the previous three Financial years.
Now the Board has decided that the exemption from Bank Guarantee will be available if the jurisdictional Commissioner of Customs is satisfied, for reasons recorded in the file, that 100% BG is not justified on account of absence of risk to revenue.
CBEC Circular No. 15/2014 - Cus., Dated: December 18, 2014
Re-warehousing of goods imported and/or procured indigenously by EOU/EHTP/STP/BTP units - Certificate from Superintendent
CBEC had prescribed an elaborate procedure for self-bonding/warehousing of imported/indigenous goods by units set up under EOU/EHTP/STP/BTP scheme, vide Circular No. 19/2007-Cus dated 03.05.2007.
It has been brought to the notice of the Board that the units are facing difficulty in obtaining deemed export benefits, as the ARE-3 is not certified by the Central Excise authorities.
Board now directs that:
Superintendent - in- charge of the unit shall make two legible photocopies of the original copy of ARE-3 (that bears his counter signature) and attest each of them as true copies with his dated signature. One attested copy shall be kept in the Range office for records and the other one shall be handed over (against dated acknowledgement) to the unit for use while applying deemed export benefits.
Hopefully, the Superintendent will be generous in granting the certified copies.
CBEC Circular No. 16/2014 - Cus., Dated: December 18, 2014
Authentication of supply invoice/ ARE-3 by the Central Excise Authorities for Claiming Deemed export benefits - Dated Signature of Superintendent
AS per Circular No. 15/2008-Cus dated 26.09.2008, in respect of units registered with Central Excise, the Superintendent of Central Excise in-charge of the unit has to make an endorsement on documents within 21 days from the date of supply or receipt of intimation, whichever is later.
It is reported to the Board that compliance with the above provision is difficult to assess when the said endorsement is not dated by the Superintendent. Moreover, difficulty was reported in obtaining document certified by Central Excise Authority w.r.t. recipient units registered with Central Excise but operating under the self- bonding/warehousing procedure prescribed in Circular No. 19/2007-Cus dated 03.05.2007.
Board has now amended the Circular to include, "Such endorsement shall bear the dated signature of the Superintendent of Central Excise. Further, where the recipient unit is operating under the procedure prescribed vide Circular no. 19/2007 -Cus dated 03.05.2007, the Superintendent of Central Excise shall, as is specified in that Circular, provide an attested true photocopy of the original ARE-3."
CBEC Circular No. 17/2014 - Cus., Dated: December 18, 2014
FTP - Deferment in the date of effect of the procedure for export of certified organic products
THE procedure for export of certified organic products notified vide Public Notice No. 73 (RE-2013)/2009-2014 dated 18.11.2014 became effective from the date of issue of public notice i.e. 18.11.2014. (Please see DDT 2478-19.11.2014)
It was decided to grant some transition time to make the Public Notice No. 73 (RE-2013)/2009-2014 dated 18.11.2014 effective. Accordingly, the procedure notified vide Public Notice No. 73 (RE-2013)/2009-2014 dated 18.11.2014 was to come into effect from 18/12/2014 (yesterday). (DGFT Public Notice No. 77 (RE-2013)/2009-2014, Dated: December 01, 2014)
But yesterday the DGFT deferred the implementation indefinitely - till further orders.
DGFT Public Notice No. 78 (RE-2013)/2009-2014, Dated: December 18, 2014
CBEC Wants Deputy Secretaries
CBEC is looking for Joint/Additional Commissioners to fill the vacancies of Deputy Secretary/Director in the Board for, Anti Smuggling, PAC, Review Cell and Narcotics Control.
Applications should reach the Board latest by 31.12.2014. Any takers?
CBEC F.No. A.35017/26/2014-Ad.II, Dated: December 12, 2014
Interruption by Lady Lawyer - Delightful - Objectionable
YESTERDAY in the Supreme Court, there was an interesting verbal exchange between the lawyer for the petitioner and the lawyer for the respondent, in a case relating to sexual harassment filed by a lady additional district judge against a High Court judge. This is how the Supreme Court described the spar in its judgement.
While the learned counsel representing the High Court was on "his" legs, learned counsel for the petitioner interjected to express "her" point of view. All through, during the process of hearing, submissions were advanced in a lively and respectful manner, and pointedly on the subject under consideration. Feeling that the thought being projected by the learned counsel was being disturbed by the intervention, the Bench accordingly exhorted learned counsel, to go on unmindful of the interruption. Learned counsel for the High Court, well-meaning and deferential as he always is, responded by observing, "The interjections by the learned senior counsel for the petitioner are always delightful".
Learned senior counsel for the petitioner, had serious objection to the term, ''delightful'' used, with reference to "her". She questioned, the use of the term, ''delightful" by posing to the learned senior counsel, whether similar interjections by men, were also considered by him as delightful. Why then, she questioned, should "her" interjection be found ''delightful''. In expressing her view, she went on to describe the response of the learned senior counsel as "sexually coloured".
Having given our thoughtful consideration to the response, of the learned counsel for the petitioner, we may only say, that she may well be right. There is a lot to be learnt, from what she innocuously conveyed. Her sensitivity to the issue, one may confess, brought out to us, a wholly different understanding on the subject. It is, therefore, that we have remarked above, that the evaluation of a charge of sexual harassment would depend on the manner in which it is perceived. Each case will have to be decided on its own merits. Whether the perception of the harassed individual, was conveyed to the person accused, would be very material, in a case falling in the realm of over-sensitivity. In that, it would not be open to him thereafter, to defend himself by projecting that he had not sexually harassed the person concerned, because in his understanding the alleged action was unoffending.
"Every day is a matter of learning", noted the Supreme Court.
Jurisprudentiol-Monday's cases
 Central Excise
Reversal of CENVAT Credit on inputs lying in stock and contained in finished goods when finished goods become exempt - Prior to 01.03.2007, there is no such requirement - Larger Bench decision in Ashok Iron and Steel to be preferred to two member Bench decision in Albert David case: HC
THE appellant is a manufacturer of agricultural tractors. For manufacture of tractors, the appellant buys raw materials, parts/components (inputs) on payment of duty. The final product, namely, tractors, was exigible to excise duty. Therefore, the appellant took credit on the duties paid on the inputs under Rule 3 of the Cenvat Credit Rules.
On and from 9.7.2004, tractors falling under Tariff item 8701 were exempted from excise duty vide Sl.No.295 of Notification No.23/2004-CE, dated 9.7.2004.
Commissioner of Central Excise issued a show cause notice alleging that the appellant has not reversed the CENVAT credit taken on inputs/components lying in stock as on 9.7.2004, and on inputs/components contained in the closing stock of finished tractors lying in stock as on 9.7.2004 and confirmed the demand with interest and penalty. The appeal filed by the assessee was dismissed by the Tribunal vide 2007-TIOL-1355-CESTAT-MAD. The assessee is in appeal before the High Court challenging the order of Tribunal.
Income Tax
Whether Revenue can resort to reopening of assessment merely on ground that Customs had seized assessee's goods and levied penalty - NO: HC
THE assessee is an individual, who had received a notice u/s 148, issued beyond the period of four years from the end of the relevant AY. Consequently, the first proviso to Section 147 would be applicable. Assessee's counsel had submitted that the re-assessment proceedings were bad in law inasmuch as the conditions stipulated in the first proviso to Section 147 of the said Act had not been fulfilled. In essence, it was submitted that there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment. It was also submitted that apart from there being no such failure on the part of the assessee, there was not even any allegation with regard to such failure in the reasons which were supplied to the assessee subsequent to the issuance of the said notice.
The issue before the Bench is - Whether Revenue can resort to reopening of assessment merely on ground that Customs had seized assessee's goods and levied penalty. And the verdict goes against the Revenue.
Service Tax
Under section 85 (3A) of the FA, 1994 Commissioner (A) does not have authority to condone delay beyond 90 days, that being the outer limit as per said provision - Petition rejected: HC
THE question of law before the High Court is -
"Whether in the wake of outer limit of period of three months, giving right to the appellant for filing appeal under section 85 (3A) of the Service Tax - Chapter V of Finance Act, 1994, the appellate court would be empowered to entertain an appeal or condone the delay beyond the outer limit of three months or 90 days, provided by the said Act?
See our Columns Monday for the judgements
Until Monday with more DDT
Have a nice weekend.
Mail your comments to vijaywrite@tiol.in
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