CIRCULARS

cuscir42_016

Courier bond executed CCSPs - Regarding

cuscir41_016

Admissibility of un-utilized cenvat credit of DTA unit converted into EOU - reg

PUBLIC NOTICE

dgft16pn027

NOTICE

dgft_trade_notice_15_2016

Special Advance Authorisation Scheme for export of Articles of Apparel and Clothing Accessories-reg

ORDER

Order No 101

CBEC gives addl charge of Chennai Central Excise to Janaki Arun Kr & DGV to Wilson Hanshing

 

CASE LAWS

2016-TIOL-148-SC-CUS

CFS ASSOCIATION OF INDIA Vs UoI: SUPREME COURT OF INDIA (Dated: August 29, 2016)

Cus - Segregation of Cargo - In view of issuance of CBEC Circular no.40/2016-Customs dated 26.08.2016 laying down the prescribed guidelines, for safety and security for maintaining distance, between hazardous cargo and general cargo, as also, hazardous cargo and administrative buildings in the customs area, and elsewhere, petitions challenging the High Court order 2011-TIOL-909-HC-MUM-CUS are disposed of: Supreme Court

Petitions disposed of

Background:

++ Segregation of Cargo - Prescription of a distance to be maintained between general cargo and hazardous cargo at Container Freight Stations or, as the case may be, Inland Container Depots.

++ Petition was filed by an association representing eleven Container Freight Stations, who claim to handle nearly eighty per cent of the local container cargo at Nhava Sheva - Petitioner challenged (i) Circular 4/2011; (ii) Public Notice 8/2011; (iii) A check list issued under a letter dated 3 March 2011, as modified by a letter dated 6 April 2011 and contended that these are unconstitutional and ultra vires Articles 14 and 19(1)(g) of the Constitution, the Environment (Protection) Act, 1986 and the Dangerous Goods (Arrival, Receipt, Transport, Handling and Storage) in Jawaharlal Nehru Port Regulations, 2007.

High Court held – [See 2011-TIOL-909-HC-MUM-CUS]

+ Prescription of a distance between hazardous cargo and an office building or, for that matter, between general cargo and hazardous cargo cannot by any means be regarded as arbitrary or ultra vires - Commissioner of Customs, who is the Competent Authority to grant permission under Regulation 5 of Handling of Cargo in Customs Areas Regulations, 2009 is duty bound to ensure that all requirements in regard to safety and security are fulfilled – Affidavit-in-reply contains a valid justification why a more stringent standard may be required to be applied in case of CFSs or ICDs where goods may be stored over a much longer duration than is the typical duration of storages in a Port area. [Para 11]

+ The concerns of safety and security need continuous monitoring and evaluation - A standard once laid down is not immune to change - It would be appropriate, since a process of re-examination has been initiated by the Central Board of Excise and Customs, if the Competent Authority in that regard is left to take a considered decision after considering all the requisite facets of the case - Union Ministry of Finance (Department of Revenue), the Union Ministry of Environment and Forests and the Union Ministry of Shipping will undertake a collaborative exercise and arrive at a decision, based on the views of experts and the need to maintain safety and security - Nothing arbitrary in the decisions impugned before the Court is shown – Petition disposed of: High Court [para 12]

Association in appeal to Supreme Court.

+ Additional Solicitor General handed over Circular no.40/2016-Customs , dated 26.08.2016 to the Supreme Court as being the clarification sought by this Court, vide Motion Bench order dated 05.07.2016.

+ It is submitted, that the aforesaid Circular no.40/2016-Customs may be treated as laying down the prescribed guidelines, for safety and security, across the Board, for maintaining distance, between hazardous cargo and general cargo, as also, hazardous cargo and administrative buildings in the customs area, and elsewhere, subject to one overriding condition, that the same would be subject to any statutory provision(s) expressly provided for the distance to be maintained in such matters.

+ Instant petitions are accordingly disposed of with the aforesaid clarification.

 

2016-TIOL-2287-CESTAT-MUM + Story

CCE, C & ST Vs SRK ENTERPRISES: MUMBAI CESTAT (Dated: February 2, 2016)

ST - Miscellaneous Application filed by Revenue for interpolation of a fresh authorization and thereby validating an appeal filed without proper authorization is dismissed but without costs: CESTAT [para 6, 13, 14]

Application dismissed

Observations of Tribunal -

+ We are perturbed that the direct method of filing a fresh appeal is being attempted to be by-passed and, more particularly, on an issue that does not entail such far-reaching consequences as to warrant tacit approval to an unauthorizedly filed appeal. We are also concerned about the circumstances and the manner in which this is attempted as it is on a rare occasion that delay in filing an appeal is not condoned.

+ In this day and age, we are fortunate that the enacted guarantees under the constitution and of the law protect citizens from whimsical and arbitrary exercise of powers by tax administrators. Law, however, can continue to retain its potency only to the extent the rigours of the safeguards are not sacrificed at the altar of expediency and technicality.

+ In disposing off miscellaneous applications in which the prayer is out of the ordinary, the Tribunal should move with deliberate caution lest there be outcomes that are prejudicial to the safeguards enjoyed by the citizenry.

+ The decisions cited on behalf of Revenue are, severally, only a tiny chink in the bastion erected by the wisdom of the supreme legislative organ to ensure that rule of law prevails over rule of men.

+ Review of adjudication and appellate orders is, and should be, a task undertaken with utmost discernment by the empowered authority to endorse their legality and propriety.

+ An appeal by Revenue is not a burden to them but ties up the assessee in legal wrangles despite having been held as compliant by lower departmental authorities.

+ The decision to continue the adversarial relationship and to prolong litigation is not in our hands but, to the extent that our discretion may abet such uncertainty, we would have to be convinced that the circumstances are not such as to cause doubts about the bona fides of the prayer for departure from the normal.

+ The common thread in all these decisions (cited) was the curability of the defects by the reviewing authority without revisiting the review itself.

+ In the matter before us, a committee, believing itself to be empowered, has undertaken the responsible task of review enjoined by the statute. It is also inevitable that the authorized committee could not but have been influenced by the decision of the unauthorized committee. That, by itself, is not sufficient cause for alarm provided the obligation to review is substantively complied with. These include the grounds on which the appeal is to be preferred, ascertaining causes for delay, if any, to justify any condonation that may be required and authorizing appropriate authorities to seek pertinent relief from the appellate authority.

+ We do accept that lapses of jurisdiction can and do occur in the increasingly complex world of administration. These, however, must be subject to a purification process with full responsibility and foreknowledge. We observe that the original authorization and review order are undated. The authorization and review order of the authorized committee are dated. The new authorization, which cannot be questioned on any score, directs the authorized officer to file the appeal. The analysis of the impugned order is eloquently elaborate and the relief articulated in the prayer is specific. Oddly, it does not include a plea for condonation of the manifest delay. It would appear that the committee was not made aware of the inordinate delay in filing the appeal in consequence of the fresh review. This glaring lapse can be rectified only by the authorized committee and rectificatory action sought by the authorized officer.

+ The plea for substitution by new authorization and deemed acceptance of earlier appeal has been made by the appellant-Commissioner. Without doubt, he is the appellant but with the authorized committee having designated a specific officer to handle the appeal, a plea entered by one not authorized by the committee for a decision that was not placed specifically before the authorized committee for a decision is a unilateral act beyond the scope of the powers of a Commissioner.

+ These flaws are severe enough for us to be displaying diffidence in applying the decision in re Coromandel Fertilisers that procedure should not be allowed to come in ‘the way of justice and it is not meant to trip justice' to the present application.

 

2016-TIOL-1954-HC-MUM-CT

CST Vs BAJAJ TEMPO LTD: BOMBAY HIGH COURT (Dated: August 23, 2016)

Bombay Sales Tax Act, 1959 - Section 2(22) & 2(28) - Whether the term "purchase price" as defined in section 2(22) is applicable only to purchases made within the State and would not be applicable to purchases which take place in the course of import of the goods into the territory of India or export of the goods out of such territory?

The Assessee is a manufacturer of motor vehicles, especially three-wheelers and parts thereof. It is registered under the provisions of the BST as also the Central CST Act". The Assessee has its factory in Maharashtra and branches in other States. The vehicles manufactured by the Assessee are sold in and from Maharashtra as also transferred to branches in other States for sale over there. The Assessee was assessed under the BST Act and which gave rise to an assessment order . The Appellate DCST passed his order thereby partly allowing the Appeal filed by the Assessee. The Tribunal held that the situs of the purchase and import was not within the State and therefore such purchases are not a "purchase" as defined in BST Act. According to the Tribunal, it thus clearly followed that the term "purchase price" as defined u/s 2(22) thereof was applicable only to purchases made within the State. It would not be applicable to purchases covered by section 75 of the BST Act, was the finding of the Tribunal.

Before the HC the Revenue Counsel submitted that "purchase price" has been defined in section 2(22) of the BST Act. It means the amount of valuable consideration paid or payable by a person for any purchase made, including any sum charged for anything done by the seller in respect of the goods at the time of or before delivery thereof. She further submitted that on a true and correct interpretation of the definition of "purchase price" read with Explanation I thereto, the same would clearly include the amount of customs duty paid or payable under the Customs Act, 1962.

Having heard the parties, the HC held that,

++ if the situs of the inter-State purchases and imports is not within the State then such purchases are not a "purchase" as defined u/s 2(28) of the BST Act. This being a case, it would therefore logically follow that the term "purchase price" as defined in section 2(22) is applicable only to purchases made within the State and would not be applicable to purchases which take place in the course of import of the goods into the territory of India or export of the goods out of such territory. This being the clear position, as can be discerned from the statutory provisions as set out in the BST Act, the customs duty paid on the goods imported into the territory of India by the Assessee herein, cannot be held to be a part of the import purchase price for the purposes of deduction or set off under Rule 41D;

++ the BST Act is a State Legislation and does not have extra-territorial jurisdiction. Section 1(2) of the BST Act clearly stipulates that it extends to the whole of the State of Maharashtra. This is yet another factor which would persuade us to hold that the customs duty paid on purchases which take place in the course of import of goods into the territory of India can never be included in the definition of "purchase price" of the said goods.

Reference Answered in favour of the Assessee