TIOL-DDT 1949
25.09.2012
Tuesday
AS per Notification No 102/2007 Cus dated 14.09.2007, if the goods imported are for subsequent sale, the importers are entitled for refund of the Additional Duty of Customs levied under sub-section 5 of Section 3 of the Customs Tariff Act, 1975. Even under the special drive for expeditious disposal of the refund claims, the importers are required to submit the following documents for claiming refund.
(a) TR-6 Challans (in original) for CVD payment; (b) VAT/ST payment Challans (in original); (c) summary of sale invoices; and (d) certificate of statutory Auditor/Chartered Accountant, for correlating the payment of ST/VAT on the imported goods with the invoices of sale and also to the effect that the burden of 4% CVD has not been passed on by the importer to the buyer.
Initially there was no time limit for claiming the refund under Notification No 102/2007 Cus dated 14.09.2007, but vide amending Notification No 93/2008 Cus dated 01.08.2008, the time limit for claiming the refund has been prescribed as “before the expiry of one year from the date of making payment of the said additional duty of customs”.
The rationale behind the above amendment has been explained by the CBEC vide Circular No 6/2008-Cus dated 28.04.2008 as under:
Time - Limit:
In the Notification No. 102/2007-Customs, dated 4.1 14-9-2007, no specific time limit has been prescribed for filing a refund application. Under the circumstances, a doubt has been expressed that whether the normal time-limit of six months prescribed in Section 27 of the Customs Act, would apply. In the absence of specific provision of Section 27 being made applicable in the said notification, the time limit prescribed in this section would not be automatically applicable to refunds under the notification. Further, it was also represented that the goods imported may have to be despatched for sale to different parts of the country and that the importer may find it difficult to dispose of the imported goods and complete the requisite documentation within the normal period of six months. Taking into account various factors, it has been decided to permit importers to file claims under the above exemption upto a period of one year from the date of payment of duty. Necessary change in the notification is being made so as to incorporate a specific provision prescribing maximum time limit of one year from the date of payment of duty, within which therefund could be filed by any person. It is also clarified that the importers would be entitled to refund of duties only in respect of quantities for which the prescribed documents are made available and the claims submitted within the maximum prescribed time of one year. Unsold stocks would not be eligible for refunds.
DDT has received a mail from a Netizen expressing the difficulties of the importers in disposing the imported goods and filing the claims within one year. He says there are a good number of customers who have had to bear the loss due to non-relaxation of the filing period. It should be further extended for a period of one more year.
Interestingly, when the time limit for claiming refunds under Section 27 was six months, the time limit under Notification No 102/2007 Cus is one year. Now Section 27 has been amended vide Finance Act, 2011 to enhance the time limit from six months to one year. Thus the demand for extending the time limit under Notification No 102/2007 Cus also appears reasonable. Hope the Board will consider it.
ADD on Paracetamol - Resurrection Again
NOTIFICATION No 99/2007 Cus dated 03.09.2007 imposed definitive Anti-Dumping Duty on Paracetamol exported from China. This Notification was in force upto 02.09.2012. Para 2 of the Notification reads:
2. The anti-dumping duty imposed under this notification shall be effective for a period of five years (unless revoked, superseded or amended earlier) from the date of publication of this notification in the Official Gazette.
So, on 03.09.2012, this Notification expired, but the designated authority vide notification F.No. 14/1009/2012-DGAD, dated the 28th August, 2012 has recommended continuation of ADD on Paracetamol. How is this to be done? Here is the simple way invented by the Board. They issued a Notification to insert para 3 in the above Notification as under:
3. Notwithstanding anything contained herein above, this notification shall remain in force up to and inclusive of the 2nd September, 2013 , unless revoked earlier.
But how can anyone amend a dead Notification?
Notification No 42/2012-Cus.,(ADD), Dated: September 19, 2012
Provisional Anti Dumping Duty imposed on Resin or other organic substances bonded wood or ligneous fibre boards
BASED on the recommendations by the DGAD, provisional ADD has been imposed on Resin or other organic substances bonded wood or ligneous fibre boards of thickness below 6mm, except insulation boards, laminated fibre boards and boards which are not bonded either by resin or other organic substances exported from China, Indonesia, Malaysia and Sri Lanka or exported from any other country with the country of origin of the above four countries. This Notification is valid for six months from the date of publication.
Notification No 43/2012-Cus.,(ADD), Dated: September 21, 2012
Import of gold in any form including jewellery - FEMA Clarification
RESERVE Bank of India clarifies that Suppliers' and Buyers' credit (trade credit) including the usance period of Letters of Credit opened for import of gold in any form including jewellery made of gold / precious metals or/ and studded with diamonds/ semi precious / precious stones should not exceed 90 days, from the date of shipment.
RBI AP (DIR Series) Circular No 34 Dated: September 24, 2012
Prevention of Money Laundering - Money Changing Activities
RESERVE Bank of India clarifies that for sale of foreign exchange to a person within his/her eligibility on single drawal, Authorised Persons (APs) may receive payment only by crossed cheque drawn on the bank account of the applicant's firm / company sponsoring the visit of the applicant / Banker's cheque / Pay Order /Demand Draft/debit cards/credit cards/prepaid cards, if the rupee payment exceeds Rs.50,000/-. For sale of foreign exchange to a person within his/her eligibility through more than one drawal within 30 days or for a single journey/visit abroad, APs may receive second and subsequent payments only by crossed cheque drawn on the bank account of the applicant's firm/company sponsoring the visit of the applicant/Bank's cheque / Pay Order / Demand Draft / debit cards / credit cards / prepaid cards, if the total rupee payment, including payments on earlier drawal /s, exceeds Rs. 50,000/- on the second or subsequent drawals.
RBI AP (DIR Series) Circular No 33 Dated: September 24, 2012
Delay in Filing SLPs - Supreme Court Lashes - CBDT Acts
RECENTLY the Supreme Court had lambasted the Income Tax department for the undue delay in filing SLPs. The Court also sent copies of its order to the Finance Minister and Law Minister.
Now, the CBDT has reacted sharply. The DG, Income Tax (Legal & Research) has written a letter to all Chief Commissioners of Income Tax that:-
1. The Supreme Court has taken a serious view in cases of delay in fling appeals as also SLPs.
2. In a particular case of delayed fling, the responsibility has been directed to be fixed and action taken suitably.
3. Proposals for filing SLP are still being received after considerable delay.
4. The proposal must reach the Directorate, complete in all respects, within 21 days of the date of Judgment of the High Court.
5. The CsIT are requested to monitor this aspect of the work closely.
6. They must explain the delay, date wise in tabular form giving names of officers, where the proposal is being submitted after the aforesaid period.
7. Excuses like heavy workload or officers on leave etc. are not acceptable.
Please see DDT 1946 - 20-09-2012 and CobWeb dated 20-09-2012
DGIT(L&R) No. DIT(L&R) -I/delay in SLP/2012-13 Dated: September 19, 2012
Contempt Petition in Supreme Court - IRS (Customs and Central Excise) Group' A' Rules, 2012 - Notified
THE promotion from the cadre of Superintendent of Central Excise, Customs and Appraisers, is a complicated issue running for years and the Supreme Court had directed the CBEC to finalise a new list by 31.12.2011. In the meantime, a contempt petition had been filed against the Revenue Secretary. The case was posted for hearing yesterday, when the petitioners (Central Excise Inspectors) requested for some time to file rejoinder affidavit to the reply filed on behalf of the Secretary(Revenue). The matter is to be posted after two weeks.
While this was going on, the Government superseded the IRS (Customs and Central Excise) Group' A' Rules, 1987 and brought in the IRS (Customs and Central Excise) Group 'A' Rules, 2012.
Now, Central Excise Superintendents, Customs Superintendents and Customs Appraisers will be promoted in the ratio of 13:2:1. Earlier this ratio was 6:2:1. Is this retrospective?
Please see DDT 1935 - 05.09.2012 ; DDT 1669 - 09 08 2011
IRS (Customs and Central Excise) Group' A' Rules, 2012 Dated: September 13, 2012
Jurisprudentiol - Wednesday's cases
Central Excise
Review order passed by Committee of Chief Commissioner's after expiry of limitation period - Tribunal has no power to validate and revive such invalid and ineffective order - LB decision in Monnet Ispat & Energy Ltd. is contrary to law laid down by Apex Court in case M.M. Rubber Co. Ltd. and which has been followed by HP High Court in case of Bhilai Wires Ltd - COD application as well as appeal filed by Revenue dismissed: CESTA T
THE application under Section 35E (4) was filed within the prescribed time limit of one month from the date of the communication of the review order, i.e. on 16.11.2011. However, along with this application, an application for condonation of delay was also filed for condoning the delay of 8 days that happened in review of the Commissioner's order dated 15.7.11 by the Committee of Chief Commissioners
Income Tax
Income Tax - Sections 45, 55(2), 263 -Whether surrender of tenancy rights can be taxed as capital gains - Whether as per Section 55(2) of Income Tax Act, cost of acquisition of tenancy rights has to be taken as nil - Whether compensation on surrender of tenancy rights prior to 01-04-1995, no capital gains tax is leviable - Whether Tribunal cannot justify an order passed u/s 263 on grounds other than those mentioned by Commissioner in revised order itself.
IN the assessment finalised, the Assessing Authority accepted the contention of the assessee that the tenancy rights being capital in nature, the receipt of Rs.2.60crores as compensation for the surrender of the tenancy rights could not be assessed. In exercise of the jurisdiction u/s 263 of the Act, the CIT sought to revise the order, placing reliance on the decision of the Special Bench of ITAT in Cadell Weaving Mill Co. Pvt. Ltd. Vs. Assistant Commissioner of Income-tax and the decision of the Allahabad High Court reported in CIT Vs. Gulab Chand.
Service Tax
ST - Consulting Engineer Service - appellant receiving services from companies located outside India - even if in agreement between service provider and service recipient, service recipient undertakes to pay tax, service recipient is not liable or made liable to pay same prior to 18th April, 2006 - appeals allowed: CESTAT
THE Appellants are having their factory/plant at Jamshedpur. During the period from 01.04.99 to 31.03.04, the Appellant were receiving design and drawing, supervision services and supervision for engineering/manufacturing activities in India from various companies located outside the territory of India, under their expansion plan of their steel plant.
See our columns Tomorrow for the judgements
Until Tomorrow with more DDT
Have a Nice Day.
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