TIOL-DDT 840
07.04.2008
Monday

If you were not with us in Hyderabad on Friday, you missed a lot! We will try to bring you the action in words, but there is really no substitute for being physically present there. The affable CBEC Member Sridhar at his eloquent best, the scholarly DRI Chief, S Dutt Majumder with his academic acclaim and the soft Service Tax Commissioner Gautam Bhattacharya at his persuasive best with the articulate TIOL team and the audience going great guns, it was an event that simply cannot be reported but had to be experienced. However in continuation of what we reported in the afternoon of Friday from the Seminar venue, DDT brings you a further capsule of the proceedings from our reporter at the Green Park Hotel Hyderabad.

Hotel Green Park , Hyderabad : 4/4/2008

After the illustrious speeches of the distinguished guests of the day, the lights turned on to the crux and purpose of the seminar. Mr S Dutt Majumder , Director General of the premier Intelligence organization of the country, namely DRI , stepped in with his detailed analysis on the new Customs Valuation. The eminent scholar and an authority in the subject delivered a researched analysis on the new Section 14 of the Customs Act, its genesis, evolution and explained the new Import and Export Valuation Rules with clinical precision.

DRI Chief, S Dutt Majumder, CBEC Member V Sridhar, TIOL Editor in Chief, Vijay Kumar and TIOL Managing Editor Shailendra.

Joseph Prabhakar , VAT expert and Advocate from Chennai spoke on the concept of ‘Right to use' under state VAT law and explained the nexus between service tax on ‘Supply of tangible Goods' and VAT on ‘Right to use'. He said that the overlapping of these two levies (VAT and Service Tax ) though on principle expected to be mutually exclusive, may pose problems both under VAT law and under service tax law on several services like Works Contract, Management, Repairs or Maintenance, Photography, Mandap Keepers.

Then S. Jaikumar , Advocate and an eminent writer in TIOL took all the audience for a cruise along the Budget proposals in this Finance Bill, 2008, with his power packed speech and a power point presentation.

Making a point – S Jai Kumar – keen listener is Joseph Prabhakar

The post lunch session was devoted to the various questions raised by the audience on a variety of issues on Central Excise and predominantly Service Tax. Gautam Battacharya , Commissioner, Service tax in the North Block and a sculptor of most of the provisions of Service tax braved all the darts shot by the intellectual gathering in his patient and pensive ways. Out of the variety of issues the major points raised and replied are:

++ The recent amendment to the definition of ¶input service¶ under the Cenvat Credit Rules, 2004 from the phrase ¶from the place of removal¶ to ¶upto the place of removal¶ will not affect the master Circular issued by the Board and even after the present amendment the Cenvat credit on the ¶ GTA Service on outward transportation¶ would be available if the two conditions stipulated in the Master Circular are met.

++¶Works Contract¶ levy is not an optional levy but a mandatory levy if the specified contracts are in the nature of ¶Works Contracts¶ after 1/6/2007 . In other words, the service provider has to classify his service ONLY under ¶Works Contracts¶ if his contracts are assessed as ¶Works Contracts¶ under the State levy. TIOL feels it as a contradiction to the Circular given by the Board on 4/1/2008 , wherein it has been clarified that, in case of ongoing contracts prior to 1/6/2007 , the service provider cannot classify the same under ¶Works contracts¶ service.

++ The term ¶turnkey projects¶ appearing in clause (e) of the ¶Works Contracts¶ levy would mean that ONLY if the entire contract is awarded and undertaken by a person. In other words, it would not cover any contract or project, which is only a portion of a contract.

++ Only those services provided within SEZ are exempted and not the services performed outside the SEZ premises, though ultimately consumed by the SEZ. TIOl feels the same is not correct as, for example, in case of a rent-a-cab operator, the service would be essentially performed from a place outside SEZ to within SEZ ad such a mean interpretation would defeat the purpose of the exemption to SEZ.

++ Any contract relating to roads including repairs, re-laying or re-tar topping of such roads are exempted from the purview of service tax, if the same are under ¶works contracts¶ as per the main definition.

What's so funny? Gautam, Sastry, Vijay and Joseph sharing a joke

Apart from the above, Gautam Bhattacharya also tried to explain the mystic mathematics behind the formula under the new Rule 6 of the CCR,2004 and also invited suggestions from the trade to make the formula less complex and reasonable.
The clock struck five but no one was in a mood to move. The questions were pouring like rain. Due to paucity of time, Moderator Vijaykumar, Editor-in-chief requested the audience to write their questions and give it to the organizers for which Gautam promised to reply promptly. After nearly ten hours of extraordinary intellectual whirlpool, the seminar concluded with the parting address by M.V.S.Prasad, Ex-Chairman of Settlement Commission, who advocated simpler laws and transparent administration.

MVS Prasad, former Chairman, Settlement Commission addressing the concluding session.

Toady we are also bringing you the text of the illuminating speech of Mr. V. Sridhar , Member, CBEC at the seminar. Please see TIOL TOP .

Rule 6 goes for first amendment after budget – L,M,N replaced with M,N,P

In our Budget analysis articles ¶ ABC of Rule 6 - what is ¶P¶? by R. Raghavendra Rao , it was pointed out that :

(iii) the amount attributable to input services used in or in relation to manufacture of exempted goods or provision of exempted services = (M/N) multiplied by P, where L denotes total value of exempted services provided plus the total value of exempted goods manufactured and removed during the financial year, M denotes total value of taxable and exempted services provided, and total value of dutiable and exempted goods manufactured and removed, during the financial year, and N denotes total CENVAT credit taken on input services during the financial year;

should read as:

(iii) the amount attributable to input services used in or in relation to manufacture of exempted goods or provision of exempted services = (M/N) multiplied by P, where M denotes total value of exempted services provided plus the total exempted goods manufactured and removed during the financial year, N denotes total value of taxable and exempted services provided, and total value of dutiable and exempted goods manufactured and removed, during the financial year, and P denotes total CENVAT credit taken on input services during the financial year;

The good Board has reacted rather quickly, they amended the above rule as suggested, by replacing L,M and N with M,N and P by issuing a corrigendum on 5 th March. This corrigendum was kept a top secret and not made available to the public.

But, as the Board is badly in need of a proof reader, the amendment which should have been made to Notification 10/2008 CE (NT) dated 1 st March 2008 has been made to Notification 10/2007 CE (NT) dated 1 st March 2008. One can only wish that at least the next amendment is carried correctly. As the amendment is made to Notification No. 10/2007 and not 10/2008 as required, this means that the error is not really rectified. As of now, the Notification No. 10/2008 remains unchanged and maybe the Board has to bring in one more corrigendum to state that it is 10/2008 and not 10/2007 which is amended.

Moral of the story: Don't hide your notifications and their amendments – you will land up in more troubles.

Corrigendum Dated 5th March, 2008

LTU in Mumbai – Board issues circular

Please refer to Board's circular No. 834/11/2006-CX, dated 05.10.2006, wherein the instructions regarding working of Large Taxpayer Unit at Bangalore were issued. The Large Taxpayer Unit at Mumbai has been made operational and notification No. 19/2008-CE(NT), dated 27.03.2008, has been issued in this regard.

The instructions contained in the aforesaid circular shall apply mutatis mutandis in respect of the LTU, Mumbai subject to certain conditions.

CBEC Circular No 867/5/2008 - CX dated 4 th April 2008

Jurispruden tiol – Tomorrow ' s cases

Central Excise

Assessee not challenging order on merits but on limitation and fails before Tribunal – Demand of Rs 28 lakhs confirmed along with penalty and interest

THE issue is straightforward, simple & clear as gin but will certainly give you a high.

The assessee was captively consuming rectified spirit for manufacturing country liquor. Since they were availing modvat/cenvat credit on common inputs & manufacturing dutiable & exempted final products, they were paying 8% of the price of rectified spirit captively consumed in compliance with the requirement of Rule 57CC of the CER, 1944.

The department observed that the price of rectified spirit cleared for captive consumption was less than the price of the same goods cleared for home consumption and as such, the assessee was reversing lesser amount than required inasmuch as they had reduced the price of rectified spirit for captive consumption from Rs.7/- per litre to Rs.5/- per litre by passing a resolution on 2.8.1996. Furthermore, the price for home consumption was raised to Rs.7/- per litre by resolution dated 23.7.96.

On being pointed out by the department, the assessee paid differential amount of duty of Rs.28.00 lakhs for clearances effected during the period 1.9.1996 to 8.5.2000. Thereafter, Show Cause Notice proposing confirmation of the duty amount already paid and proposing interest and penalty was issued.

The ritual followed & needful was done in the form of confirmation of demand and imposition of penalty to the tune of Rs.27.77 lakhs & not to forget, interest.

Before the Tribunal, the assessee bared their soul - they do not wish to challenge the demand on merits but only on the ground of limitation & also challenge imposition of interest & penalty. As to what made them take such a stand is really surprising!

Income Tax

Carried forward unabsorbed depreciation equivalent to current depreciation could be set off : Bombay HC

It is clear from the order dated 9.6.2006 that the set off was granted in order to pass on to the petitioners the benefit that they had obtained under the order passed by an appellate authority in a statutory appeal. In our view, the said order was not an order passed under Section 154 of the Income Tax Act 1961. The power to pass such an order was in fact inherent in section 143 or section 144. In the circumstances, the limitation as contained in section 154(7) of the Act would not apply to the passing of such an order. Similarly, in our view, the findings that the allowability of unabsorbed depreciation against income from other sources is debatable in nature, cannot be sustained..”

In the net result, the petition is allowed with a clarification that the petitioners will not have a right to set off in respect of the unabsorbed investment allowance of Rs.31,58,423.

Service Tax

Input Service - Assessee manufactures Tractors, 3-wheeler and M.Vs parts - Repair and Maintenance Services incurred on Motor Vehicles provided to employees and officers prima facie entitled as Cenvat Credit: Tribunal

DECIDING the fate of entitlement or otherwise of Cenvat Credit on a variety of “input services” is now becoming as exciting as ever.

Just take a look at wherefrom it all began –

++ Service tax credit available on Mobile phones - Board Circular dated 20.06.2003 cannot be pressed into service in the context of the new Cenvat Credit Rules, 2004 - no stipulation in rule 4(1) or 4(7) expressly prohibiting such credit availment. Indian Rayon Industries Ltd. vs. CCE , Bhavnagar 2006-TIOL-1152-CESTAT-MUM .

++ Service Tax - Cenvat credit of service tax paid on input services - Credit of service tax on construction on services in relation to advertisement - Setting up of circles/gardens away from the factory for the purpose of putting signboard cannot be considered as relating to activity in relation to advertisement Mobile services - In view of the settled decision appeal allowed. [Tribunal decision in the case of Indian Rayon Industries Ltd. 2006-TIOL-1152-CESTAT-MUM relied upon] Excel Crop Care Ltd. vs. CCE , Ahmedabad 2007-TIOL-701-CESTAT-Ahm

++Service tax - CENVAT - Outdoor Catering Service - Appellants claim cenvat credit on outdoor catering services provided in the company canteen claiming that it indirectly assists manufacturing activities - No prima facie case for complete waiver of amounts - Tribunal orders pre-deposit. Bajaj Electricals 2007-TIOL-1866-CESTAT-Mum

++Service Tax paid on Repairs & maintenance of Civil construction viz. residential colony for factory employees eligible for Cenvat Credit - Manikgarh Cement vs. CCE , Nagpur 2008-TIOL-133-CESTAT-Mum

++ Canteen/Catering services provided to employees may be obligatory as per the Factories Act, 1948 but it cannot automatically lead to the conclusion that the same relates to business activity – Credit not available - Tribunal. CCE , Nasik vs. Mahindra Sona, Ace Glass Containers Ltd., Jindal Saw Ltd. 2008-TIOL-199-CESTAT-Mum

++ ST paid by Outdoor Caterers for running Canteen Services in a factory is an Input Service - Credit available – Bajaj Electricals, Victor Gaskets, Bosch Chassis 2008-TIOL-409-CESTAT-Mum [decision contrary to Mahindra Sona case]

The present case concerns the entitlement or otherwise of credit of Service Tax paid on Mobile phones & also Repair & Maintenance Services. The total cenvat credit involved is Rs.3.38 lakhs.

Happy festivals

Today is Vikram Samvatsar, Chaitra Sukladi, Gudi Padava, Ugadi, Cheti Chand, Navreh and Sajibu Cheiraoba – Have a nice celebration

Until tomorrow with more DDT

Have a nice day.

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