TIOL-DDT 1611
19.05.2011
Thursday

WHEN it comes to taxes, our Board is really pound foolish and pennywise. Machinery and pipes used for water treatment plants were exempted by Sl. No. 7 of Notification No. 6/2006 dated 1.3.2006. A noble exemption to reduce the cost of supplying water to the citizens, which should be a primary duty of the government, in which they miserably failed.

Let us see the history of this exemption:

I. The Original notification 6/2006 dated 1.3.2006 exempted:

(1) All items of machinery, including instruments, apparatus and appliances, auxiliary equipment and their components/ parts required for setting up of water treatment plants;

(2) Pipes needed for delivery of water from its source to the plant and from there to the storage facility.

Explanation. - For the purposes of this exemption, water treatment plants includes a plant for desalination, demineralization or purification of water or for carrying out any similar process or processes intended to make the water fit for human or animal consumption, but does not include a plant supplying water for industrial purposes. II. This was amended by Notification No. 6/2007 dated 1.3.2007 as follows:

for item (2), the following shall be substituted, namely:- 2. Pipes needed for delivery of water from its source to the plant (including the clear treated water reservoir, if any, thereof), and from there to the first storage point;

3. Pipes of outer diameter exceeding 20 cm when such pipes are integral part of the water supply projects.”;

III. This was further amended by Notification No. 26/2009 dated 4.12.2009 as:

In item (3), for the figure and letters “20 cm”, the figure and letters “10 cm” shall be substituted.

IV. So now the notification reads as:

1) All items of machinery, including instruments, apparatus and appliances, auxiliary equipment and their components/ parts required for setting up of water treatment plants;

2) Pipes and pipe fittings needed for delivery of water from its source to the plant (including the clear treated water reservoir, if any, thereof), and from there to the first storage point;

3) Pipes and pipe fittings of outer diameter exceeding 10 cm when such pipes are integral part of the water supply projects.

Explanation.-For the purposes of this exemption, water treatment plants includes a plant for desalination, demineralization or purification of water or for carrying out any similar process or processes intended to make the water fit for human or animal consumption, but does not include a plant supplying water for industrial purposes.

Now there is a doubt as to whether the exemption pertaining to pipes of outer diameter exceeding 10 cm applies only to pipes required for the delivery of water from its source to the plant and from there to the first storage point or whether it includes pipes required for the distribution network also.

And the Board clarifies:

The amendments made to the notification with effect from 01.03.2007 were in view of the policy objective of providing potable water for domestic use. The purpose of the insertion of sub-entry (3) w. e. f. 1.3.2007 was to obviate disputes about the scope of the term “first storage point” which shifts depending on the layout and the nature of the project and to replace it with the more objective criterion of pipe diameter. Subsequently the diameter specification was reduced from 20cm to 10cm. The only qualification prescribed in sub-entry (3) is that the pipes should form an integral part of the water supply project. As such, post 1.3.2007, the benefit of this exemption is available to pipes of outer diameter 20cm (10cm w. e. f 4.12.2009) even if they are used in the distribution network beyond the first storage point. However, the benefit is confined to the pipes that form a part of the project. Thus, pipes which are used at the last mile to provide the consumer connection whose cost is either paid by the consumer or recovered from him do not form part of the project and will not be eligible for the exemption.

How much money is the Government going to save by denying the exemption to the so called last mile? And how much litigation are they going to generate by this circular? Should the Board be working overtime just to deny small benefits, especially for vital projects like water supply? Should the best brains of the country be wasted (vested) with such powers?

CBEC Circular No. 945/6/2011-CX , Dated: May 16, 2011

SEZ - Service Tax - Refund - Board Clarifications

“A new scheme is also being introduced by which units in SEZs will be able to obtain tax-free receipt of services wholly consumed within the zone and get their refunds in a much easier manner”, said the Finance Minister in his Budget 2011 Speech.

And the JS, TRU in his DO Letter explained,

Notification No. 17/2011-ST has been issued superseding notification 9/2009-ST dated 03.03.2009. The new notification has the following unique features:

(a) Criteria for the determination of “wholly consumed” services have been laid down in the notification, borrowing from the Export of Services Rules, 2005. It has also been specified that all services received by an entity in a SEZ, which does not have any other DTA operations, will constitute “wholly consumed” services.

(b) No service tax is required to be paid ab-initio if the same are meant to be “wholly consumed” within SEZ, including services liable to tax on reverse charge basis under section 66A.

(c) Refund of the remaining services i.e. which are not wholly consumed shall be available on pro rata basis i.e. ratio of SEZ turnover to total turnover.

(d) Suitable rule has been introduced in Cenvat Credit Rules, 2004 to waive the requirements of rule 6 in case of services provided, without payment of tax, to a SEZ unit for its authorized operations.

Obviously several doubts remained unanswered and the Board now clarifies some of them.

Q 1 To claim the refund arising out of service tax paid under section 66A, no proforma is prescribed in the notification; how to claim it?

A In the notification, there is no difference in treatment of service tax paid under section 66 and section 66A of Finance Act, 1994. Where refund arises, Table - A, in Form A-2 can be used for making a refund claim.

Q 2 (i) In the notification, what is the treatment for service tax paid on taxable services which do not fall in the category of “wholly consumed services”, and also are not ‘shared services' ? Is refund available?

(ii) Whether in the case of category (iii) services referred in paragraph 2(a) of the notification, ‘proportionate refund' applies to only ‘shared services' i.e. services that are used both for SEZ (Special Economic Zone) authorised operations as well as DTA (Domestic Tariff Area) operations?

A It is clarified that para 2(d) of the notification is applicable to refund arising from ‘shared services' only. Thus exemption to services exclusively used for the authorised operations of SEZ Unit/Developer, will continue to be available by way of refund, as specified in paragraph 2(a) itself,

The services shall be considered as exclusively used by SEZ if :

Q 3 Meaning of the expression ‘who does not own or carry on any business other than the operations in the SEZ' appearing in paragraph 2(a)(iii) of the notification, which creates a difference between ‘standalone' and ‘non-standalone' SEZ Unit/Developer, may be clarified

A The expression refers to an entity which is carrying out business operations in SEZ and also DTA. Merely having an office in the DTA for purpose of liaison/business promotion, does not restrict a SEZ Unit from availing benefit extended to a standalone unit.

Q 4 Whether Approval by UAC is necessary, to claim benefit under the notification?

A Yes. Unit Approval Committee (UAC) of the SEZ determines goods and services required for the authorised operations of a Unit/Developer, under the SEZ law. Hence approval of the UAC is necessary for availing the notification benefit, on the taxable services.

Q 5 (i) Does condition (c) prescribed in paragraph 2 of the notification, restrict the non-standalone Units/Developers, from availing upfront exemption for wholly consumed services, which fall under category (i) and (ii) of para 2(a) of the notification?

(ii) For whom and for what purpose, Declaration in A-1 is required?

A In respect of category (i) and (ii) services listed in paragraph 2(a), upfront exemption is made available to all SEZ Units/Developers, who fulfill the conditions of notification; only in the case of category (iii), difference is created between standalone and non-standalone SEZ Units/Developers.

Declaration in Form A-1 is required to be produced, to a service provider, to claim upfront exemption (after striking out the inapplicable portion). This is a one-time Declaration. Original Declaration can be retained with the SEZ Unit/Developer for business record or for production to the jurisdictional Central Excise/Service Tax authorities, if need be, for any verification; a copy has to be retained by SEZ Specified Officer; self-attested photocopies of the Declaration can be submitted to service provider to avail upfront exemption, subject to fulfillment of other conditions mentioned in the notification.

Q 6 Meaning of the expression “total turnover” found in paragraph 2(d) of the notification is not clear: whether it refers to turnover of SEZ Unit or the entity (including DTA and SEZ Unit). This may be clarified.

A Total turnover includes turnover of DTA Unit and also export turnover of SEZ Unit. This is the way to calculate proportionate refund. Table-C in Form A-2, illustrates this aspect.

Q 7 A Developer may not have export turnover; therefore, he cannot get refund of service tax based on the formula provided for shared services in paragraph 2(d) of the notification: therefore, it may be explained how a Developer can claim exemption under the notification?

A Generally, SEZ Developers will be using category (i) services listed in paragraph 2(a), relating to immovable property located within SEZ; upfront exemption is available for these services, and category (ii) services, irrespective of whether the Developer is standalone or not. As another option, refund route is also available. In the case of category (iii) services if Developer is standalone, upfront exemption is available. If Developer is not standalone, on service tax paid on category (iii) services, which are exclusively used for the authorised operations in SEZ, he can avail exemption through refund route. ‘Exclusive use' explained in clarification for question No.2. may also be referred in this connection.

Q 8 Whether proportionate amount of service tax paid on shared services that have not been refunded after applying the formula in paragraph 2(d), shall be available to the DTA Units of the entity as cenvat credit?

A Yes. Available.

Q 9 Whether consolidated refund claim under 17/2011-ST can be filed by an entity having more than one SEZ unit and a centralized service tax registration.

A If an entity is having multiple SEZ Units with a centralized service tax registration, consolidated refund claim can be filed, provided separate accounts are maintained for receipt and use of services for the authorised operations in SEZ Unit.

Q 10 Whether certified copies of invoices can be used for claiming refund, if originals are needed for other statutory purpose; Whether on the basis of single invoice, one can claim proportionate refund for SEZ Unit and balance as cenvat credit

A In terms of the notification, original invoices are needed for claiming refund; after receiving the refund, originals can be taken back on submission of copies certified by Chartered Accountant. On a single invoice, if proportionate refund (by SEZ Unit) and cenvat credit (by DTA Unit) needs to be obtained, then also similar system shall be followed.

Why can't they simply say, "we will not give refunds!"

Please see our article Service tax refunds to SEZ - Primrose path  

CBEC Circular No. 142/11/2011-ST., Dated: May 18, 2011

Amendment in Procedure of Tariff Rate Quota Scheme

THE DGFT has amended the Tariff Rate Quota (TRQ) Scheme.

(1) Under TRQ Scheme, the import of Maize (Corn) ITC HS Code 100590 is allowed Duty Free, as has already been notified by Customs Notification No. 9/2007 dated 25.1.2007.

(2) With effect from the date of this Public Notice, the Actual User condition will not be mandatory under imports of all items under TRQ Scheme.

DGFT Public Notice No. 47/(RE-2010)/2009-2014, Dated: May 18, 2011

Jurisprudentiol – Friday's cases

Central Excise

Rule 96ZQ - Penalty has to be equal to the duty - No discretion: Supreme Court

IF there is any failure to pay the amount of duty by the date specified in sub-rule (3), the assessee is liable to pay penalty equal to an amount of duty outstanding from him at the end of such month or Rs.5,000/-, whichever is greater. The expression 'shall' used in the said provision, also indicates that such a provision is mandatory. The same view is also taken in the decision of this Court in  Union of India and others v. Dharamendra Textile Processors and others (2008-TIOL-192-SC-CX-LB).

Income Tax

Sec 263 - Whether when assessee lends colour of business income to dividend income declared as 'income from other sources' in previous year, and AO allows set-off of brought forward losses against such income, it is a fit case for CIT to invoke revisionary powers - YES, says Delhi High Court

THE issue before the High Court is -  Whether when assessee lends colour of business income to dividend income declared as 'income from other sources' in the previous year and AO allows set off of brought forward losses against such income, it is a fit ground for CIT to invoke revisionary powers u/s 263. YES is the High Court's answer.

Customs

One Statement retracted but penalty imposed on the basis of un-retracted statement and corroborative evidence - Penalty Upheld: High Court

TRIBUNAL has come to a specific finding that the appellant herein had issued airway bills; he had acted as an agent of the 5 concerns which were owned by Sh. Tejwant Singh; he played his role on specific instructions of Sh.Tejwant Singh; and he was dealing with the Customs Officers in respect of export of these very goods. The Tribunal is thus categorical that the appellant was connected with the procurement of the goods by the exporters and there were other statements and sufficient material to implicate the appellant.

See our columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a Nice Time.