TIOL-DDT 2941
30 09 2016
Friday

CBEC yesterday issued fresh instructions on the adjudication powers of its officers.

The Highlights of the CBEC Circular:

1. It is directed that henceforth powers of adjudication both in Central Excise and Service Tax shall be exercised, based on the monetary limit of the duty/ tax/  credit  involved in a case, as under: -

2. Cases involving taxability, classification, valuation and extended period of limitation shall be kept out of the purview of adjudication by Superintendents. Such cases, upto rupees 10 lakhs, shall also be adjudicated by the Deputy Commissioner/ Assistant Commissioner in addition to the cases exceeding rupees 10 lakhs but not exceeding rupees 50 lakh.

3. Cases of refund (including rebate), shall be adjudicated by the Deputy Commissioner/ Assistant Commissioner without any monetary limit.

4. Unlimited powers of adjudication to Additional/Joint Commissioner in cases of transit loss and Cenvat Credit. (see the contradiction; In 1. Above, there is a limit of two crore rupees for the Joint Commissioner, but under this, there is no limit. LITIGATION?)

5. In case different show cause notices have been issued on the same issue answerable to different adjudicating authorities, Show Cause Notices involving the same issue shall be adjudicated by the adjudicating authority competent to decide the case involving the highest amount of duty.

6. Every adjudicating authority of Central Excise and Service Tax in the field shall endeavour to adjudicate 100 cases in a year.

7. Cases which have been remanded back for de novo adjudication shall be decided by an authority of the rank which passed the said remanded order.

8. In all cases where the personal hearing has been completed, orders will be passed by the adjudicating authority before which the hearing has been held. Such orders should normally be issued within a month of the date of completion of the personal hearing.

Yesterday's DDT said,

The Board Circular states:

Chief Commissioners shall review the position of Service Tax cases pending for adjudication at the level of Commissioner, and earmark these cases to Commissioners of Central Excise and Commissioners (Audit) also within their respective Zones. Orders allocating cases for adjudication would be required to be issued. Similar exercise can be done on the Central Excise side also..

An immediate exercise may be undertaken by the field formations to, take stock of the present pendency, redistribute them for adjudication and transfer the relevant files and records to respective adjudicating authorities.

The Chief Commissioners concerned are directed to ensure that once the Show Cause Notices pending for adjudication are re-distributed and re-assigned, the pending cases are to be disposed by 31.03.2017. (Before GST?)

And they have rescinded not just Circular No. 80 of 2005, but 7 other circulars.

CBEC Circular No. 1049/37/2016-CX., Dated: September 29 2016

Adjudication - a Non Existing Provision?

IN the 1998 Budget, the Board embarked upon a misadventure to exclude Cenvat/Modvat Credit from the purview of appeals before CESTAT from orders passed by Commissioner (Appeals) by inserting a new clause (d) in the proviso to Section 35B(1).

As per this clause, the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order if such order relates to, credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998. The explanatory memorandum stated it as, Section 35B being amended to provide that the second stage appeal in respect of MODVAT cases may lie with the Government of India by way of revision application. This would take effect from a date to be notified separately.

This provision was to come into effect from a date to be notified by the Government. And the Government has NOT notified the date so far due to public outcry.

Now, in the Circular issued yesterday, Board states, "cases related to issues mentioned at Sl. No. (a) and (d) under the first proviso to Section 35B(1) of the Central Excise Act, 1944 shall be adjudicated in the following manner." (and the Board has given unlimited monetary power to the JC/ADC.)

The problem dear Board, is that Sl. No. (d) under the first proviso to Section 35B(1) SIMPLY DOES NOT EXIST!.

The Adjudication confusion is not a recent phenomenon, but has a long history.

The Adjudication Confusion

YESTERDAY, Advocate Natarajan posted a question on our Message Board,

Section 83A, under which this notification (as well as the earlier notification) has been issued, reads as below.

SECTION 83A. Power of adjudication. - Where under this Chapter or the rules made thereunder any person is liable to a penalty, such penalty may be adjudged by the Central Excise Officer conferred with such power as the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), may, by notification in the Official Gazette, specify.

So the adjudication powers are only with reference to quantum of penalty?

Can the limits be applied if ST liability has to be adjudicated?

These provisions are different in the three enactments pertaining to Customs, Excise and Service Tax.

Let us study the Central Excise case. Here the Section 33 power of adjudication is for confiscation and penalty and the Assistant Commissioner can impose a maximum penalty of Rs. 250/-. And the Additional/Joint Commissioner is nowhere in the picture. Anyway as per the Act, if the penalty is more than Rs. 250, the adjudication is to be done by the Commissioner!

Board had clarified this mystery nearly twenty years ago in Circular No. 299/15/97-CX, Dated: Feb 27,1997 in which it was stated:

i) By virtue of Clause (a) of Section 33 of Central Excise Act 1944, Commissioners can adjudicate the cases of confiscation and penalty without limit. This power has been delegated to Deputy Commissioners by C.B.R. Notification No. 12-Cexdt. 17th May 1947, to Assistant Commissioners of Central Excise by C.B.R Notification No. 8-C.Exdt. 2nd September 1944 and to Superintendent of Central Excise by C.B.R. Notification No. 93/95 dt. 28th November 1959.

ii) So far as the confirmation of duty is concerned, it is observed that Section 11A empowers any Central Excise Officer to issue the notice and determine the duty due.

This is an archaic Section in the Central Excise Act. Can you think of confiscating something worth five hundred rupees and imposing a penalty of two hundred and fifty rupees these days?

And why different statutory positions for the three Statutes under the same Revenue Administration? Board knows! And the Act for some, Notification for some and any number of circulars for some. Can you think of a more confused administration?

Coming back to the question raised by Natarajan, I think the Mumbai Bench of the CESTAT has answered this question in 2013-TIOL-558-CESTAT-MUM, wherein it was observed,

The issue for consideration is whether the powers of adjudication under Section 83A of the Finance Act, 1994 is confined only to adjudication of penalties or does it also cover adjudication of Service Tax liability and interest liability under Section 73 and 75 of the Finance Act, 1994…….

It may be seen that the penalty imposable under Sections 76 and 78 are directly dependent upon the quantum of Service Tax defaulted or evaded. Therefore, if the penalty is imposed under these Sections, it is necessary to determine the quantum of Service Tax defaulted or evaded. Thus, determination of penalty is integrally connected with the determination of Service Tax liability. Therefore, these issues, that is, determination of service tax liability and imposition of penalty cannot be separated. In other words, the power under Section 83A for adjudging penalty includes inherently the power of determination of Service Tax liability; otherwise the entire purpose of Section 83A would be rendered futile. It is a well accepted principle of statutory interpretation that no Section of statute should be interpreted in such a way so as to make it a nullity.

Section 83A was inserted into Chapter V of the Finance Act, 1994 vide clause 88 of the Finance Bill, 2005 which was subsequently enacted. The notes on clauses of the said Finance Bill relating to section 83A reads as follows:

"(ix) sub-clause (j) seeks to insert section 83A so as to provide power of adjudication in service tax cases"

Thus the purpose and object of Section 83A is to provide powers of adjudication in service tax cases, which includes, the power of determination of service tax and interest liability thereon in addition to the power of imposition of penalty. Therefore, the said section cannot be interpreted in a narrow sense to restrict the power to imposition of penalty alone. The said section 83A does not read as "only penalty" or "solely penalty".

Section 83A envisages not only the determination of penalty but also determination of service tax liability as the former is incidental to the determination of the latter and is integrally connected with the latter.

Customs - Tariff Rate of Duty on Butter, Ghee to Continue

AS per Serial Number 8 of the Table in Notification No.12/2012-Cus, dated 17.03.2012, there is a concessional Customs duty of 30% for Butter, ghee and butter oil. But this is not applicable till 30th September 2016. This is now extended till 31 st March 2017. This means the tariff rate of 40% instead of the effective rate of 30% will be applicable till 31 st March 2017.

Notification No. 53/2016 - Cus., Dated: September 29 2016

Charges Allocated to CBEC Members

RECENTLY Mr. S. Ramesh joined the Board as a Member and consequently the charges of the Members have been re-allocated as:

CBEC Office Order No. 116/2016., Dated: September 29 2016

Don't Criticise Govt. - CBEC Tells Staff Associations

CBEC has noticed that of late, some Associations/Federations have commented adversely on the Government and its policies. Board wants the Chief Commissioners to bring to the notice of all Associations/Federations that if anyone indulges in criticism of the Government and its policies, appropriate action (including disciplinary action) shall be taken under Rule 9 of the Central Civil Services (Conduct) Rules, 1964. Board further states;

Further, recognized service associations/federations are entitled for certain benefits such as correspondence and meetings with the head of the administrative departments; provision of accommodation for the association subject to availability; facility of special casual leave up to 20 days in a year to the office bearers of the associations; payment of T.A/D.A for attending officially sponsored meetings etc. In the case of service associations/federations who are not recognized or whose recognition has expired, office bearers of such associations/ federations shall not be entitled for these benefits. A list of the associations/federations recognized as on date is annexed to this letter. Therefore, all the field formations are directed to, ensure that the benefits as stipulated in the rules are extended to the office bearers of only such associations/federations which are recognized.

CBEC F.No. 10C13(12)/1/2016-Ad. II B., Dated September 29 2016

Until Monday with more  DDT

Have a nice weekend.

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