TIOL-DDT 2654
03 08 2015
Monday

ON Saturday, we have carried two important orders of the Supreme Court wherein the Supreme Court

Held that:

1. To determine whether transportation costs are to be included in the Transaction Value, what is to be determined is 'place of removal' and that depends on facts of each case. - 2015-TIOL-163-SC-CX

2. Even if DGFT holds that export obligation is fulfilled, it is not binding on Customs and the importer was bound to fulfill the conditions of the Customs notification. - 2015-TIOL-162-SC-CUS

The Government's strong will to levy excise duty on transport charges is consistently ridiculous. For more than half a century we are not able to decide what this elusive place of removal is. If in addition to selling my goods, I arrange transport for my customer, why should I pay excise duty on transport charges? And strangely, if the customer pays the transporter, that cost is not included, but if manufacturer pays it is included. Does excise duty depend upon who pays the transporter? This kind of laws are made only to confuse and generate litigation. This simple phrase “place of removal” created a mountain of litigation not only in valuation, but also in CENVAT credit and Service Tax. The mighty Government's capacity to make life miserable for the taxpayers whose hard work and risk ensure fat salaries for the babu, is immense.

We bring you three more recent Supreme Court judgements today.

Central Excise - Deemed Credit - When deemed credit is allowed as per the notification, payment of duty is not mandated - Supreme Court upholds Assistant Commissioner's order .

This is a case where an Assistant Commissioner passed an order in favour of the assessee. The Commissioner (Appeals), the Tribunal and the High Court ruled against the assessee, but finally the Supreme Court upheld the Assistant Commissioner's order. We don't know who that Assistant Commissioner is but we salute him.

The issue was very simple. By a notification, deemed credit of a certain amount was allowed on certain scrap items. Other than the Assistant Commissioner, all the authorities disallowed the credit on the ground that the assessee has not paid duty. The Supreme Court observed that payment of duty was not mandated for availing this concession.

Please see Breaking News

Concessional Duty on Cement based on annual capacity of the plant as certified by Commissioner of Industries - matter remanded:

There is a concessional rate of duty for cement based on the annual capacity of the plant as certified by the Commissioner of Industries. The Central Excise Commissioners usually do not believe the Commissioner of Industries and launch investigations on the actual capacity. The notification does not stipulate a fishing expedition by the Central Excise officers. When you have notified an Authority to give a certificate, what is your problem in accepting that certificate. If you believe that Commissioner of Industries cannot be believed, remove that provision in the law and have your own investigation to find out the plant capacity.

In this case the Supreme Court remanded the case to the Tribunal to come to a conclusion as to whether the certificate issued by Commissioner of Industries should be acted upon or not.

Please see 2015-TIOL-164-SC-CX

Central Excise valuation: Related Person - Mutuality of interest:

The person who is sought to be branded as a "related person" must be a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other. It is not enough that the assessee has an interest, direct or indirect, in the business of the person alleged to be a related person nor is it enough that the person alleged to be a related person has an interest, direct or indirect, in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest, direct or indirect, in the business of each other.

In this case, the Supreme Court held that mere giving interest free loan by the buyer by itself may not be a reason to hold them as related persons

Please see 2015-TIOL-165-SC-CX

Import of aircraft, arms etc. for Defence - Certifying Authority

AS per Sl. No. 10A of Notification No. 39/96-Customs, dated the 23rd July, 1996, the certificates for import of aircraft, arms, radars etc. for the Defence Ministry, by Central PSUs have to be signed by the "functional Director". Now this notification is amended to authorise the Chief Executive Officer also to sign this certificate.

Notification No.42/2015-Customs, Dated: July 30, 2015

CBEC opens GST Office

WHETHER the GST Bill will get through Parliament or not, the CBEC seems to have suddenly become active on the GST front. Slots have to be booked in advance for GST if and when it comes.

CBEC has decided to create a GST Directorate in Delhi and for this purpose they are shifting the headquarter of DGST, Mumbai to Delhi. Directorate General of Service Tax (DGST) will henceforth be re-named as Directorate General of Goods & Service Tax (DGGST) w.e.f. 01.08.2015.

This GST directorate will be headed by a Principal DG - as and when they are able to promote some Chief Commissioners to the level of Principal Chief Commissioner.

CBEC F. No.A-11013/18/2015-Ad.IV., Dated July 31, 2015.

GST - I'm game; are you? - FM asks Congress

THE FM has launched a blistering attack on the Congress Party - Dissent or Disruption - The Congress Party's Position on GST.

He has used the forum of facebook for this as obviously he is not getting an opportunity to reply through Parliament.

The FM says that it was Mr. P. Chidambaram who first mooted the idea of GST in his Budget Speech of 2006-07. The Constitution Amendment Bill, 2011 was introduced by Mr.Pranab Mukherjee.

The FM says GST is to simplify the complex indirect tax structure in the country. The present system involves multiplicity of taxes, absence of uniform rates of taxation, and the cascading effect of “Tax on Tax”. It is also an impediment in the seamless transfer of goods and services across the country. The GST simplifies the indirect tax regime. It seeks to reduce cost of production, inflation, multiplicity of taxes and uneven taxation rates.

He has answered the objections raised by Congress Members of the Select Committee.

1. GST rate of 18%: This suggestion was not in the Bill proposed by Shri Pranab Mukherjee. When Shri P. Chidambaram negotiated with the Empowered Committee, this suggestion did not exist even then. The rates of taxation are usually not fixed in the Constitution, more so when we live in a dynamic world. The rates have to be recommended by the GST Council depending on various factors such as economic conditions, revenue buoyancies etc. and incorporated in the GST laws.

2. No GST on Inter unit transfer: There was no such proposal in either Mr.Pranab Mukherjee's bill nor in the proposal approved by Mr. Chidambaram. In any case, GST charged on supply of goods and services would be VATable and not have any cascading effect.

3. Share of local bodies in the revenue buoyancy should be a part of the proposed constitution amendment: This goes contrary to the 73rd Amendment to the Constitution which provided for setting up State Finance Commissions which have the responsibility of making such recommendations. In any case, neither Mr. Pranab Mukherjee nor Mr. Chidambaram had accepted any such proposal.

4. Electricity, tobacco products and alcohol for human consumption should be given the same treatment as petroleum in the Amendment bill.: This was not a proposal mooted by any of the Congress Finance Ministers. A consensus with the States would be effectively broken if this suggestion of the Congress is accepted.

5. Deletion of a two years transient provision which provided for an additional tax of 1%: This provision has been added in order to allay the fear of the manufacturing States which felt that they would initially lose some revenue. This is based on a unanimous decision of the Empowered Committee to which all Congress ruled States have agreed.

The FM asks, Should Congress party's obstructionist tendencies inflict an economic injury on the country?

Anti Dumping Duty on Glazed Tiles - Provisional Assessment Finalised

BY Notification No. 109/2011-Customs, dated the 15th December, 2011, provisional assessment was ordered in respect of imports by M/s Gaoyao Marshal Ceramics Co. Ltd., China PR (producer) through M/s Foshan Dihai Trading Development Co. Ltd., China PR, in relation to anti dumping duty on glazed tiles other than vitrified tiles originating in or exported from China PR imposed by Notification No. 127/2009-Customs, dated the 2nd December, 2009.

Now the Government has decided that the assessments are to be finalised by paying the anti dumping duty.

Consequently Notification No. 109/2011-Customs (ordering provisional assessment) is rescinded.

Notification No. 35/2015-Customs (ADD), Dated: July 31, 2015

Notification No. 36/2015-Customs (ADD), Dated: July 31, 2015

Anti-Tuberculosis Drugs, Diagnostics & Equipment exemption extended

CENTRAL Government had exempted goods imported and procured domestically under Revised National Tuberculosis Control Programme (RNTCP) funded by the Global Fund to fight AIDS, Tuberculosis and Malaria (GFATM) from customs and excise duty respectively.

The condition is that the importer/manufacturer, at the time of clearance of the said goods, produces before the jurisdictional Assistant/Deputy Commissioner of Customs/Central Excise, a certificate from an officer not below the rank of Deputy Secretary to the Government of India in the Ministry of Health and Family Welfare to the effect that the said goods are required for the RNTCP funded by the GFATM.

The exemption was to be valid till 30th September, 2015. Now they have extended it till 31 st March 2016.

Notifications 40/2015-CE & 41/2015-Cus, Dated July 30, 2015

Best Tribute to APJ Abdul Kalam - Govt works on Sunday

AS a tribute to Dr. APJ Abdul Kalam, Post Offices in Jaipur worked on Sunday. The attendance was near hundred per cent! Several offices in other places also worked on Sunday.

Tariff Value of Silver and Oils Decreased

THE Government has decreased the Tariff value of silver, all oils and brass scrap. Poppy seeds, arecanut and gold remain unchanged.

The Tariff values as on 23.07.2015 and with effect from 31.07.2015 are as under:

Notification No. 72/2015-Customs (NT), Dated: July 31, 2015

Until Tomorrow with more DDT

Have a nice day.

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