TIOL-DDT 2722
10 11 2015
Tuesday

TAX on whole value or abated?

A major manufacturer writes in, "cess is leviable on value of taxable service, whereas in certain services service tax is payable on abated value; whether cess is payable on total value of taxable service or on abated value wherever applicable. Kindly do the needful."

A consultant says,

The Notification No.26/2012-S.T. dtd. 20.06.2012, exempts the taxable service of the description specified in column (2) of the Table appended to the said Notification, from so much of the service tax leviable thereon under section 66B of the said Act, as is in excess of the service tax calculated on a value which is equivalent to a percentage specified in the corresponding entry in column (3) of the said Table, of the amount charged by such service provider for providing the said taxable service,

Further as per recent changes the Swachh Bharat Cess, as service tax on all or any of the taxable services at the rate of 0.5 per cent. on the value of such services will be levied & collected wef 15.11.2015.

The services like transport of goods by road, residential/commercial construction by builder /developer etc come under purview of the Notificationno.26/2012-S.T. dtd. 20.06.2012.

It is required to clarify specifically that whether the SBC is leviable on abated value or on the taxable value.

Illustration- Presently residential construction by builder /developer attracts service tax @ 3.5 % after abatement i.e. 25% of 14%. However, after SBC levy, whether it will be 3.5+0.5= 4% or 25% of 14.5%=3.625% on the value.

Rule 4 or 5?

An advocate comments:

It appears that almost everybody is having a view that Rule 4 of POT Rules, will apply for Swacch Bharat Cess (SBC).

However, I feel that SBC is a new tax (Cess), different from Service Tax, even though the provisions for Service Tax Chapter V of FA, 1994 and rules made thereunder are adopted for levy, assessment and collection of SBC. Accordingly, Rule 5 of POT Rules, provides for payment of taxes when the service is taxed for the first time. The said rule is extracted below for better clarity: -

RULE 5. Payment of tax in case of new services. - Where a service is taxed for the first time, then, -

(a) no tax shall be payable to the extent the invoice has been issued and the payment received against such invoice before such service became taxable;

(b) no tax shall be payable if the payment has been received before the service becomes taxable and invoice has been issued within fourteen days of the date when the service is taxed for the first time.

Thus, SBC is a fresh levy i.e. cess different from Service Tax, even though it is treated as Service Tax in terms of Sec.119(2) of Finance Act, 2015, which is further strengthened by the fact that no corresponding amendment in Cenvat Credit Rules, 2004, treating SBC as Service Tax. As such, I feel that Rule 5 of POT Rules will apply for SBC and not Rule 4.

Will the CBEC clarify these doubts or should we wait for another 20 years for the Supreme Court to decide these issues after protracted litigation?

Adam Smith said, "The tax which each individual is bound to pay ought to be certain, and not arbitrary. The time of payment, the manner of payment, the quantity to be paid, ought all to be clear and plain to the contributor, and to every other person. Where it is otherwise, every person subject to the tax is put more or less in the power of the tax-gatherer, who can either aggravate the tax upon any obnoxious contributor, or extort, by the terror of such aggravation, some present or perquisite to himself. The uncertainty of taxation encourages the insolence and favours the corruption of an order of men who are naturally unpopular, even where they are neither insolent nor corrupt. The certainty of what each individual ought to pay is, in taxation, a matter of so great importance, that a very considerable degree of inequality, it appears, I believe, from the experience of all nations, is not near so great an evil as a very small degree of uncertainty."

"The [tax] law, contrary to all the ordinary principles of justice, first creates the temptation, and then punishes those who yield to it; and it commonly enhances the punishment too in proportion to the very circumstance which ought certainly to alleviate it, the temptation to commit the crime."

Action against High-pitched and unreasonable assessment orders - CBDT Initiative - Making Babu Responsible

THE other day an agitated assessee came to me and said that he wanted to submit a complaint to the Prime Minister, Finance Minister and CBEC Chief against an adjudicating officer for a very unfair, unreasonable and perverse order, which even an ordinary man with no knowledge of tax laws would know is ridiculous. I had to convince him to appeal against the order and not to go round making complaints. (What else can a lawyer advise?). But he was very frustrated that not only he had to go through the arduous appellate mechanism, but also make a mandatory pre-deposit against a patently illegal order.

The CBDT seems to be aware of such situations. In an Instruction to the field staff issued yesterday, the Board says,

Board has consistently been advising the field authorities to be fair, objective and rational while framing scrutiny assessment orders. Role of supervisory authorities in this regard, has also been highlighted by the Board from time to time. It has, however, been brought to the notice of Board that the tendency to frame high-pitched and unreasonable assessment orders is still persisting due to which grievances are being raised by the taxpayers. Such grievances not only reflect harassment of taxpayers but also lead to generation of unproductive work for Department as well as Appellate Authorities.

So, CBDT has decided to constitute Local Committees to deal with Taxpayers Grievances from high-pitched scrutiny assessment. The grievance petition received by the Local Committee would be examined by it to ascertain whether there is a prima-facie case of high-pitched assessment, non-observance of principles of natural justice, non-application of mind, gross negligence or lack of involvement of assessing officer. The Committee would ascertain whether the addition made in assessment order are not backed by any sound reason or logic, the provisions of law have grossly been misinterpreted or obvious and well established facts on records have outrightly been ignored. The Committee would also take into consideration whether the principles of natural justice have been followed by the assessing officer.

If it is established that unreasonable and high-pitched additions have been made by the assessing officer, suitable administrative action would be taken, wherever required. Further, departmental position as determined by the Local Committee in such cases would be appropriately presented before the Appellate Authorities so that litigation is curtailed .

Board has however clarified that the purpose of constitution of Local Committee is to effectively and efficiently deal with the genuine grievances of taxpayers and help in supporting an environment where assessment orders are passed in a fair and reasonable manner. The Local Committee, in no way, can be considered to be an alternative/additional appellate channel.

This is a great march ahead in litigation management. CBDT deserves all praise for launching such a laudable scheme. We only hope that this like the “Committee of Commissioners/Chief Commissioners” is not converted into a farce. Will CBEC follow suit?

CBDT Instruction No. 17/2015., Dated: November 09, 2015

FTP -Quality Certification Agencies to apply to DGFT

APPENDIX 2I of the AANF lists the quality certification agencies. Agencies desirous of enlistment in Appendix 2I of Appendices & Aayat Niryat Forms were to submit their application as per Annexure I to Appendix 2I to the concerned RA. Now they have to apply to the DGFT.

DGFT Public Notice No.45/2015-2020., Dated:November 09, 2015

FTP - Appendix 4G changed

AS per para 9.06 of the Handbook of Procedure, "Importer shall maintain a register as in Appendix-4G (for 3 years period) of items imported under an Authorisation and separately for items imported with actual user condition and its consumption. In respect of particular schemes such register shall be maintained for specified period."

This Appendix-4G has now become Appendix-4H.

DGFT Public Notice No.46/2015-2020., Dated: November 09, 2015

Recent Supreme Court Judgements

CENTRAL Excise - Valuation - whether the installation, erection and commissioning charges for equipment installed at customer's premises and values thereof can be added/included for determining the assessable value?

CESTAT has relied upon the judgments of the Supreme Court in PSI Data System Ltd. v. Collector - 2002-TIOL-46-SC-CX, Mittal Engineering Works Pvt. Ltd. v. Collector - 2002-TIOL-201-SC-CX, holding that inclusion of installation, erection and commissioning charges for equipment installed at customer's premises cannot be added/ included to determine the assessable value.

This is obvious conclusion on reading of Section 4 of the Central Excise Act as per which the transaction value is to be arrived at at the time of clearance of the goods at the factory gate. All the expenses which are incurred post clearance (that too, after the supply of equipment) in respect of installation, etc., could not have been taken into consideration in the facts of the present case as noted by the CESTAT.

Please see Commissioner of Central Excise, Mumbai Vs Brimco Plastic Machinery Pvt Ltd - 2015-TIOL-273-SC-CX.

Central Excise - Modvat/CENVAT - credit of inputs used in mines entitled - the goods in question were captively used for the construction of the plant and had nothing to do with the mining which is accepted by the Department itself in the show cause notice.

Credit of inputs used in mines entitled - the goods in question were captively used for the construction of the plant and had nothing to do with the mining which is accepted by the Department itself in the show cause notice. Yet the Tribunal remanded the matter to the Commissioner (A). There was no need to remand the case back to the Commissioner (Appeals) as on admitted facts when the principle laid down in Vikram Cement's case is applied, the assessee was not liable to pay any duty. The order of the CESTAT remitting the case back to the Commissioner (Appeals) is thus, set aside allowing these appeals.

Please see Madras Cements Ltd Vs Commissioner of Central excise, Trichy - 2015-TIOL-272-SC-CX

Customs - Valuation - Under valuation - Tribunal has not only misinterpreted the statements of two partners of the assessee, it has also sidetracked and ignored other relevant material

There is a categorical admission that the prices/values declared for imports through Chennai port for similar items was much less compared to the values declared at Mumbai port. The justification which was ultimately sought to be given was that the goods imported at Chennai port were defective in nature which was the reason and for this reason, these goods were brought at lesser price. It was also explained that though there was guarantee clause in the contracts in respect of goods imported at Mumbai, no similar provision was there for the products imported and cleared at Chennai port. However, the assessee has not substantiated the aforesaid plea by producing the contract in respect of Mumbai port and Chennai port. In the absence thereof, it was not permissible for the Tribunal to accept this plea of the assessee.

Please see Commissioner of Customs (SEA), Chennai Vs National Lamination Industries - 2015-TIOL-271-SC-CUS.

Tariff Value of Gold Reduced

GOVERNMENT has decreased the Tariff value of gold from 373 to 354 USD per 10 grams.

There is no change in the Tariff values of other items.

Notification No. 107/2015-Customs (NT), Dated: November 09, 2015

Until Thursday with more DDT

Have a nice day.

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