TIOL-DDT 2049
20.02.2013
Wednesday

SUB-section 1A was inserted in Section 129B of the Customs Act, 1962 by the Finance (No. 2) Act, 2004 and which reads -

"(1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing :

Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal."

A similar sub-section also saw its appearance in section 35C of the CEA, 1944.

In the present case concerning suspension of the licence by the Commissioner of Customs (General), Mumbai, an appeal was filed by the CHA firm in the year 2009.

At the request of the appellant, application for early hearing was allowed and the case was listed for hearing on 19/04/2012. As none appeared when the case was called, the same was adjourned to 03/07/2012. On that day also none represented the appellant and the case was adjourned to 10/09/2012. On 10/09/2012 also the appellant was un-represented and the case was adjourned to 29/11/2012 and on this day also the appellant failed to turn up despite notice.

The Bench put into operation the above reproduced provision and held thus -

"...This case has been adjourned more than three times so far and there is no representation on behalf of the appellant. As per the provisions of Section 129B(1A), the Tribunal has to grant adjournment only three times. In this case, the third adjournment has also been exhausted and to-day is the fourth time, the case is coming up for hearing. Therefore, we dismiss the appeal for non-prosecution."

Please See 2013-TIOL-333-CESTAT-MUM

AR tells Bench that since NO recovery can be made within 30 days of appellant filing appeal he may be given more time to argue matter

SERIAL no. 6 of the tabulation in paragraph 2 of the now (in)famous Board Circular 967/01/2013-CX dated 01.01.2013 mentions -

In the present Customs case, the appellant, on 28/29.01.2013, filed Stay applications along with the Appeals against the Order-in-original dated 14.01.2013 passed by the Commissioner of Customs, CSI Airport, Mumbai.

When the Stay application came up for hearing before the Bench on 31.01.2013, the Revenue representative submitted that till 30 days from the date of filing appeal, no recovery can be made against the appellant as per the Board Circular dated 01.01.2013 and, therefore, he sought more time to argue the matter.

The Bench acceded to the request of the AR and the matter was fixed for hearing on 11.02.2013.

Please See 2013-TIOL-332-CESTAT-MUM

Customs - Exemption to Goods Imported under Post Export EPCG Duty Credit Scrip

PARA 5.11 of the Foreign Trade Policy, which provides for duty remission in proportion to export obligation fulfilled, reads as:

Post Export EPCG Duty Credit Scrip(s)

(a) EPCG Duty Remission Scheme shall be available to exporters who intend to import / procure capital goods on full payment of applicable duties and choose to opt for this scheme.

(b) Duty paid on Capital Goods (excluding portion CENVATed / Rebated) shall be remitted in the form of freely transferable duty credit scrip(s).

(c) Specific EO under this Scheme shall be 85% of the applicable specific EO, if the imports of such Capital Goods had taken benefit of duty exemption. Average EO continues to remain unchanged.

(d) Duty remission shall be in proportion to the EO fulfilled.

(e) These Duty Credit Scrip(s) can be used for payment of applicable custom duties for imports and applicable excise duties for domestic procurement.

(f) All provisions of the existing EPCG Scheme shall apply insofar as they are not inconsistent with this scheme.

This Scheme was introduced in the Foreign Trade policy supplement 2012 announced on 05.06.2012. The Commerce minister Anand Sharma in his speech while releasing the Annual Supplement said:

We are now introducing a new post-export EPCG scheme. This scheme provides flexibility to exporters for importing capital goods on payment of duty, based on which an Export Obligation at a level of 85% to the original shall be stipulated. Thereafter, the exporter will be entitled to obtain Duty Free Scrips in proportion to the actual exports effected, thereby doing away with the requirement of monitoring the Export Obligation, thus reducing the transaction cost .

All the grandiose schemes of the Commerce Ministry will become reality only when the Finance ministry recognises the scheme and issues the relevant notification.

In Circular No. 20/2012-Cus dated 27.07.2012, the CBEC clarified,

There are certain areas of change in the FTP for which notifications shall be issued subsequently to make them operational. These include making operational the scheme of Post Export EPCG duty credit scrip (para 5.11 of FTP) for which modalities are being worked out in consultation with DGFT .

Now, after 8 months of the announcement in the FTP, Revenue has issued the notification exempting goods when imported into India against a Post Export EPCG duty credit scrip.

It takes the Board eight long months to issue a notification to make the Foreign Trade policy of this country, operational!

Notification No. 05 and 6/2013 - CUS Dated: February 18, 2013

Central Excise - Exemption to Goods Cleared under Post Export EPCG Duty Credit Scrip

PARA 5.11 of the Foreign Trade Policy, which provides for duty remission in proportion to export obligation fulfilled allows Duty Credit Scrip(s) to be used for payment of applicable excise duties for domestic procurement.

So, now the Government has (after 8 months) exempted goods when cleared against a Post Export EPCG duty credit scrip from the whole of the duty of excise.

Notification No. 02 and 3/2013 - CE Dated: February 18, 2013

Exemption to Export Promotion Schemes - Visakhapatnam Airport added

UNDER several exemption notifications pertaining to imports under the various promotional schemes, the imports are allowed only through certain ports, airports, ICDs, or Land Customs Stations. Now Visakhapatnam is added to the list of airports. 31 Notifications are amended and the Board needs to be congratulated for amending all the notifications, which were required to be amended. Now they have a right list with them.

Adding Visakhapatnam airport was also a policy decision announced by the Commerce Minister on 05.06.2012. In Circular No. 20/2012-Cus dated 27.07.2012, the CBEC clarified that Visakhapatnam Airport had to be specified in the Customs exemption notifications for the purposes of import and export under the export promotion schemes for which modalities are being worked out by DG (Systems) and Chief Commissioner, Visakhapatnam.

This also took eight months to be completed.

Notification No. 04/2013 - CUS Dated:  February 14, 2013

CBI Vs Customs: CBI has no 'intention' of interfering with work of Customs

A press release issued by CBI yesterday reads,

Reports have been published in a section of the media alleging that a person was reportedly 'shielded' by a senior CBI Officer in Mumbai from Customs officials at Mumbai airport.

The CBI wishes to clarify that no officer or staff of the CBI has any intention of interfering with the work of the Customs Department. It appears that the said CBI officer was presented with some unverified version of events by the person reportedly being checked by Customs officials at Mumbai Airport.

What is the story behind this?

A couple of weeks ago a passenger fully drunk landed up in Mumbai airport from London and he dropped the names of some top officers including CBI Joint Director in Mumbai and is said to have abused the customs officers. He had a recommendation from the Chief Commissioner, Bhopal to treat him as a VIP. This VIP passenger had on an earlier occasion been arrested under COFEPOSA and was in jail for nearly seven months. The Customs officer conducted a medical test on the passenger and took him to the Sahar Police Station to lodge a complaint. Then the CBI Joint Director called up the Customs officers and they dropped the complaint. It seems the Customs Commissioner at the airport has made a complaint to the CBI director against the Joint Director who allegedly interfered in their work and even threatened some junior officers.

Grant of Commendation Certificate on occasion of Central Excise Day, 2013

ON the occasion of Central Excise Day, 2013, it has been proposed to award Commendation Certificates to selected officers at an All India level from different grades who, by their innovative ideas/continued devotion and commitment to duty have contributed in promoting excellence in the fields of Central Excise, Service Tax & Customs administration. The objective is to give due recognition to officers who may have contributed significantly in diverse areas such as training, law related work e.g. in Tribunal, Systems, personnel administration, Audit, CRCL, etc. which often remain unrecognized by way of formal awards. (Are these consolation prizes?)

The Commendation Certificates are proposed to be distributed in the Central Excise Day function being organized at New Delhi on 25th Feb, 2013.

This Scheme was announced yesterday and they want the names of the deserving officers by today. When will the Chief Commissioners circulate this and when will they get the names? Who will give any importance to this kind of awards?

Chief Commissioner of Central Excise Delhi, C.No.CCU( DZ) Admn /1242012 Dated: February 18, 2013

Jurisprudentiol – Thursday's cases

Central Excise

EOU clearing fruit pulp to own DTA unit for processing into juice and sale thereof - Revenue demanding duty from EOU on MRP basis on juice cleared on ground that both units are related persons - payment of duty by EOU proper - applicant has prima facie case in favour - Stay petition allowed: CESTAT

THE applicant is a 100% EOU and cleared fruit pulp to their DTA unit on payment of appropriate duty under the permission granted by the competent authority. The DTA unit processed the fruit pulp and sold the juice. The Revenue is of the view that since the applicants and the DTA are related persons, therefore, the applicants are liable to pay duty on MRP on the juice cleared by the DTA unit.

Since the Commissioner(A) upheld the demand of Rs.28,16,877/- and interest and penalty, the applicant is before the CESTAT.

Income Tax

Whether principal of promissory estoppel can be invoked, once tax concession granted under specific Section of I-T Act, is taken away by any other Section under the Act - NO: HC

THE assessee is a company registered under the provisions of Companies Act, 1956 and had set up a newly established industrial unit in Silvassa, a notified backward area. The assessee had been claiming deduction u/s 80-IB. Section 11JB, Minimum Alternate Tax provision was introduced in the Income Tax Act retrospectively w.e.f April 1, 2001. While for one of the AY the section was made applicable for the assessee, for the subsequent two AYs, the assessee filed returns being fully aware of the provisions of this Section. The assessee had opposed the levy on various grounds and mainly contending that its entire income attributable to this activity was allowed as exempted income and therefore, the taxable income of the assessee was not as determined by applying the provisions of Section 115JB of the Act.

Customs

Argument that ‘flash memory' and ‘flash memory cards' are different items has no technical basis - product literature clearly indicates that the item is solid state memory card and is meant for external use with computer or laptop as plug-in-device - since product satisfies description given in notification 6/2006-CE, benefit of concessional rate of CVD allowed: CESTAT

THE appellant filed bills of entry for import of ‘flash memory cards' under CTH no. 8523 5100 and claimed exemption under notification no. 24/05-Cus dated 1.3.2005 and concessional CVD of 4% under notification 6/2006-CE dated 1.3.2006. The concessional rate of CVD was denied by the original adjudicating authority on the ground that the flash memory card imported by the appellant did not have any plug to function or serve as a plug-in-device and the goods were mostly and widely used in cell phones and cameras.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a Nice Day

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