TIOL-DDT 2611
03. 06. 2015
Wednesday

PARAS 3.20 to 3.24 of the FTP 2015-2020 contain the provisions relating to Status Holders. The norms for the five specified categories of exporters (from one star to five star) are given in the Table given under para 3.21.

It is heard that there is lot of confusion in export community with regard to the manner of computation of export performance. What caused the confusion is the absence of certain words in the new Policy vis a vis similar provisions in the old Policy.

From the old Policy, it is very clear that the status is given based on the TOTAL exports during the current and previous three years.

In the absence of the words, “plus” and “taken together” in the new Policy, two interpretations are making rounds. One is that the export performance should be taken together for all three years as it existed in the old policy and the other is the export performance should be taken year-wise as omission of these important words is intentional. To give an illustration,

If the performance is taken together, the exporter will get ‘Three Star Status' (more than 100 million USD). If the exports are taken year-wise, he will get only One star status (more than 3 million in each year)

There is also confusion with regard to para 3.20(d) which reads as:

(d) For granting status, export performance is necessary in at least two out of three years.

Perhaps what they meant by the phrase “export performance” is that there should be some exports during at least two years. But use of the phrase “export performance” gives an impression that it is the “quantum of export” for deciding the status. In other words, for getting ‘One Star Status', an exporter should have exported goods valued at 3 million USD in at least two of the three years.

When DDT contacted some officers of DGFT, they said they were also not sure whether the exports are to be taken together as was in practice or if any intentional change has been made in the new Policy.

We request the DGFT authorities to issue a clarification with some illustrations, before this snowballs into a major issue.

Delay in Process of Bills of Entry - High Court calls for report from CBEC

IN four writ petitions before the High Court, the common grievance was that bills of entries are pending from the year 2011-2014. The petitioners' grievance is that the Customs have taken no steps for provisional assessment of bills of entries resulting in exposing them to an imminent possibility of levy of detention and demurrage charges.

The High Court observed, officers charged with an obligation to perform statutory duties are not only required to discharge such obligations cast on them but are also required to act with utmost expedition. Delay in performance of statutory duties, often renders the remedy provided by the statute illusory.

The High Court requested the CBEC to inquire into the matter as to why there was a delay at the level of the Commissioners in processing such cases.

The High Court asked for a report. If any action is required to be taken, qua the concerned officers, the same should also be indicated in the report.

When will these officers realise that huge money is involved and mindless delay can cause huge monetary loss and mental agony?

Please see 2015-TIOL-10 86 -HC-DEL-CUS

Can Retired Officers be appointed as CESTAT Members?

ADVOCATE Gururaj from Bangalore raised this issue in our Message Board yesterday. The process of selection is so mazy that even a young officer may retire by the time he gets the appointment order. But that is another matter. Coming to the question at hand, the answer seems to be in the affirmative.

As per Rule 3(2) of the ‘Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987',

(2) A person shall not be qualified for appointment as a technical member unless he has been a member of the Indian Customs and Central Excise Service Group 'A' and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years .

So, it is enough if he has been an IRS officer and a Commissioner for three years; it is not required that he should be holding the post.

Even Section 129 (2A) of the Customs Act stipulates:

(2A)  A technical member shall be a person who has been a member of the Indian Customs and Central Excise Service, Group A, and has held the post of Principal Commissioner or Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years.

In fact,the Ministry while calling for applications clarified this. The Ministry in the Vacancy Circular stated:

"As per the opinion given by the Ministry of Law and Justice (Department of Legal Affairs), all serving/ retired officers who otherwise fulfil the eligibility criteria for the post of Member (Technical) as stipulated under Rule 3(2) of the Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and conditions of Service) Rules, 1987 are also eligible."

Interestingly there is a slight difference in the case of Settlement Commission where a Member has to be selected from serving Chief Commissioners/Pr.Chief Commissioners/Principal Commissioners.

Then what happens if a selected officer retires by the time he is selected? The Rule provides a solution for the wise babu. Rule 3 of the Customs and Central Excise Settlement Commission (Recruitment and Conditions of Service of Chairman and Members) Rules, 2015 stipulates, “ The officer should be in service on the date of occurrence of the vacancy .”

But strangely this does not apply to the Authority for Advance Rulings (AAR). As per Section 28F of the Customs Act, a Member should be an officer of the Indian Customs and Central Excise Service, who is qualified to be a Member of the Board.

So only working officers can be appointed to the AAR. Here there was a controversy recently. What is the meaning of who is qualified to be a Member of the Board ? In this case a Chief Commissioner was selected for the post of Member in AAR and a sitting Board Member was not selected. The Board Member approached the CAT that she should have been selected, as she was already a Member of the Board. The CAT was not impressed.

Award for ASK

THE CBDT has constituted an award for recognising the best performing Aayakarsewa Kendras (ASK). The awards will be presented by the CBDT Chairman in the annual conference of Chief Commissioners, commencing from the year 2016. Board wants the Principal Chief Commissioners to send nominations by 30th September every year.

The award is to recognize and promote excellence in implementation of Citizen Centric Governance initiative through ASK.

Can such an award rejuvenate the now defunct Help Centres launched with much fanfare by the CBEC?

CBDT Office Memorandum in F. No. 48/5/2015/ASK Award/DOMS., Dated: May 29, 2015

Until Tomorrow with more DDT

Have a nice day.

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