TIOL-DDT 2083
11.04.2013
Thursday

WE are getting several mails about difficulties in filing ST-3 Returns, especially about the Status of the returns - that is whether they are accepted or rejected. The last date for filing the return is 15th April, just four days left and assesses are worried that they would be visited with notices and penalties.

The ACES website proclaims - "The status of the Service Tax returns for the return period July-Sept, 2012, uploaded on or after 25.03.2013 can be viewed now under 'View XML Status' option."

Most probably they are waiting to see how many assesses are able to file the return by the last day and will perhaps extend the last date on the last day - 15th April - Till then don't wait for the extension - file your return, wait and watch.

ST-3 What Should I do now? A frustrated Assessee asks

WE got this mail from an assessee today morning:

I regret to state that I have uploaded my return for July-Septemebr, 2012 on 26-03-2013 and was rejected twice on the same date. I called ACES help desk and was told that there were some problems in the system. I was told to upload it again and was told that it will now not be rejected. So, I uploaded the return third time on 26-3-13 and was following up regularly to get status as "Filed". I was given different dates whereby I was told that the status 'filed' would be available on 01-04-2013 then on 03-04-2013 and then in 'few days'. Due to this vague term of 'few days', I was daily checking the status and till 10-04-2013, the status was 'uploaded'. However, to my shock, when I checked it today morning on 11-4-13, it shows that the return is rejected.

I feel that the Government is taking honest taxpayers for a ride. First of all, though it was known to the Government that it is introducing Negative List based service taxation when budget was presented on 16-03-2012, it had not been able to design and make available the form of service tax return for more than one year. It made available the utility only on 25-03-2013 i. e. after more than a year. This utility appears to be faulty. It was modified perhaps on 29-03-2013 without informing anyone. It was modified on 09-04-2013 and no circular or notice was issued. If an honest taxpayer fails to file his return late by a day, he is paying late fee or penalty. However, due to problems at the end of Government machinery, any number of blunders goes unpunished. This is gross injustice to the subject of this country. By such behaviour, Government is making life miserable for honest taxpayers and keeps them in tension and stress without any fault on their part. At the same time, it is failing in providing precise and correct information about the exact date on which the status of return will be shown as 'filed" and makes vague assertions like "few days". It is high time that the Government machinery becomes accountable and be compassionate to the woes of the honest tax payers failing which they will shy away from doing businesses. Because of inefficiency or inadequacy of Government machinery, the subject is made to suffer. There are taxpayers who were ready to file their returns for period ended 30-09-2012 by 01-10-2012 but they were helpless without the utility made available to them. Relevant date for calculating limitation period for issuing show cause notice is the date of filing of return. By not providing the facility to file returns on time, Government is extending limitation period without any fault on the part of the taxpayers. ACES office had called me on telephone and informed me that the status "filed" will be available on 01-04-2013 for my return. However, today, without any intimation to me, the return is rejected. I attach the screen shot of the status of my return as rejected (not shown here). Kindly guide me immediately about:

1. What I should do now? Am I required to file return again? If yes, will my date of filing be treated as 26-03-2013 as I had already filed it on 26-3-2013?

2. What should other taxpayers do for filing their returns? Should they file their returns now or you are still testing your software?

I look forward to your immediate response.

So do we all!

Government Releases Consolidated FDI Policy

GOVERNMENT has released the Consolidated FDI Policy effective 5th April 2013.

It is the intent and objective of the Government of India to attract and promote foreign direct investment in order to supplement domestic capital, technology and skills, for accelerated economic growth. Foreign Direct Investment, as distinguished from portfolio investment, has the connotation of establishing a ‘lasting interest' in an enterprise that is resident in an economy other than that of the investor.

The Government has put in place a policy framework on Foreign Direct Investment, which is transparent, predictable and easily comprehensible. This framework is embodied in the Circular on Consolidated FDI Policy, which may be updated every year, to capture and keep pace with the regulatory changes, effected in the interregnum. The Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce & Industry, Government of India makes policy pronouncements on FDI through Press Notes/ Press Releases which are notified by the Reserve Bank of India as amendments to the Foreign Exchange Management (Transfer or Issue of Security by Persons Resident Outside India) Regulations, 2000 (notification No.FEMA 20/2000-RB dated May 3, 2000). These notifications take effect from the date of issue of Press Notes/ Press Releases, unless specified otherwise therein. In case of any conflict, the relevant FEMA Notification will prevail. The procedural instructions are issued by the Reserve Bank of India vide A.P. Dir. (series) Circulars. The regulatory framework, over a period of time, thus, consists of Acts, Regulations, Press Notes, Press Releases, Clarifications, etc.

The present consolidation subsumes and supersedes all Press Notes/Press Releases/Clarifications/ Circulars issued by DIPP, which were in force as on April 4, 2013 and reflects the FDI Policy as on April 5 2013. This Circular accordingly will take effect from April 5, 2013. Reference to any statute or legislation made in this Circular shall include modifications, amendments or re-enactments thereof.

DIPP Circular No. 1/2013, Dated; April 05 2013

Import of Pets - What is Value?

DDT 2081 - 09.04.2013 had reported about the import of pets under baggage. A concerned Netizen asks us as to what would be the value of the pets for clearance under baggage. He says, "A dog of a particular breed may cost more than a lakh. Now the question arises whether the dog will go in the free allowance of Rs.35,000 or charged to duty. The circular is left to the interpretation of every Customs officer!!!!!"

For an owner, the pet is invaluable.

Shouldn't the Board clarify this issue too?

Double duty paid on imported consignment by e-payment as well as manually - excess duty paid cannot be treated as ‘duty' so as to apply bar of limitation for granting refund

THE appellant imported a consignment of pigments on 21/02/2009 & 24/02/2009 and paid duty, both manually and by e-payment. On realization that the duty has been paid twice they filed a refund claim on 29.08.2009. The said refund claim was rejected on the ground that the same has been filed beyond the period of six months.

As the lower appellate authority rejected their appeal, the paint company is before the CESTAT.

The Bench observed -

"5. It is an admitted fact that the duty payable by the appellant has been paid. The excess duty paid was not required to be paid by the appellant. Therefore the same cannot be treated as duty. As held by this tribunal in the case of Shankar Ramchandra Auctioneers - 2010-TIOL-632-CESTAT-MUM wherein it was held that the excess amount paid erroneously as duty which was not required to pay, there is no bar to return of such amounts. Therefore, the provisions of Section 11B of Central Excise Act, 1944 are not applicable. Relying on the said decision, I hold that the provisions of Section 11B ibid are not applicable to the facts of this case. Therefore not filing the refund claim in time cannot be the reason for denying the claim as bar of limitation is not applicable to this case."

The order was set aside and the appeal was allowed with consequential relief.

See 2013-TIOL-588-CESTAT-MUM

Top 10 Tips for customs clearance on arrival

1. FEEL free to contact the customs facilitation counter and enquire before proceeding for the Green Channel.

2. Don't depend merely on friends, travel agents etc. for information. Please check up the information with the customs helpdesk.

3. Declare the contents of your baggage truthfully and completely. Mis-declaration in any manner is offence punishable with fine, penalty, and may lead to arrest/prosecution

4. Know what is permissible in your baggage before undertaking the journey.

5. Don't bring in the goods for commercial purpose.

6. Alcoholic liquor or wines in excess of two litres is not allowed within the duty free allowance.

7. Declare to Customs foreign currency beyond value of US$ 5000 or equivalent (if in cash) or foreign exchange including currency of a total value of US$ 10,000 or equivalent

8. Any purchase from "Duty Free Shop" does not mean that no duty shall be chargeable on them. Duty shall be charged on the goods beyond your admissible allowance even if purchased from duty free shops.

9. Customs has the authority to conduct examination of your baggage and a search of your person in case of suspicion. Your cooperation shall ensure a faster clearance.

10. Carrying of Narcotic drugs/psychotropic substances is a criminal offence in India and shall invite imprisonment and possibly even death penalty.

(Source: Mumbai Airport Customs)

Annual day function is an integral part of business activity - Mandap keeper service is an Input service

THE appellant celebrated the Annual Day function which was attended by the employees and their family members as well as the employees of their sister units. To make the event a grand one, they had hired the services of a Mandap keeper.

Needless to say, the Mandap Keeper had to discharge his Service Tax liability and the appellant availed the CENVAT credit of the same.

Revenue was probably not invited to this Annual Day celebration and held a grouse.

A Show cause notice was issued for denial of the CENVAT credit taken on the ground that ‘Mandap Keeper service' is not an Input service in terms of rule 2(l) of the CCR, 2004.

Both the lower authorities denied the credit and so the appellant is before the CESTAT.

The appellant cited the decisions of the High Courts in the case of Toyota Kirloskar Motor Pvt. Ltd. vs. CCELTU, Bangalore (2011-TIOL-941-HC-KAR-ST) and CCE Nagpur vs Ultratech Cement Ltd. (2010-TIOL-745-HC-MUM-ST) to justify their claim of CENVAT and the Revenue representative cited the decisions in CCE Nagpur vs Manikgarh Cement - 2010-TIOL-720-HC-MUM-ST and Eicher Motors Ltd. vs. CCE Indore - 2009-TIOL-953-CESTAT-DEL to support the department stand.

The Bench distinguished the decisions cited by the Revenue and allowed the appeal by observing - "It is not in dispute that the Annual Day function of the appellant Company was celebrated and for the function the employees and their families were invited. The annual day function of the appellant company is an integral part of the business activity and it is also found that the appellant is the manufacturer of excisable goods. Therefore, by relying the decisions of Ultratech Cement Ltd.(supra) and Toyota Kirloskar Motor Pvt.Ltd. (supra), the appellant is entitled to input service credit on Mandap Keeper Service…. "

See 2013-TIOL-587-CESTAT-MUM

New Exchange Rate of Japanese Yen

GOVERNMENT has notified new exchange rates of Japanese Yen for imported and export goods from today by amending the earlier notification 35/2013-Cus.(N.T) . Interestingly, there is no change in the exchange rates of the other 18 foreign currencies that appear in Schedule-I of the said notification.

Notification No. 36/2013 - Cus.,(N.T.), Dated: April 10, 2013

Trade to remain subdued in 2013 after sluggish growth in 2012 as European economies continue to struggle

WORLD trade growth fell to 2.0% in 2012 - down from 5.2% in 2011 - and is expected to remain sluggish in 2013 at around 3.3% as the economic slowdown in Europe continues to suppress global import demand, WTO economists reported on 10 April 2013. "The events of 2012 should serve as a reminder that the structural flaws in economies that were revealed by the economic crisis have not been fully addressed, despite important progress in some areas. Repairing these fissures needs to be the priority for 2013," WTO Director-General Pascal Lamy said.

Developing countries and the Commonwealth of Independent States (CIS) collectively raised their output by 4.7% in 2012, with Africa recording the fastest growth of any country or region at 9.3%. China was not far behind at 7.8%, while India recorded a 5.2% increase. However, the newly industrialized Asian economies of Hong Kong (China), the Republic of Korea, Singapore and Chinese Taipei registered a disappointing 1.8% increase as slumping European demand penalized their exports.

Jurisprudentiol - Friday's cases

Service Tax

classification of service - if a person is simply selling a product manufactured by another or licensing software developed by another, he cannot prima facie be considered as a franchisee: CESTAT

THE appellants are engaged in marketing and licensing of the popular software known as "my SAP" along with other related software products of software firm based in Germany. They do software licensing, maintenance, consulting and training services. There is an agreement between the appellant and their principals in Germany. Subject to the terms of the agreement, the principals granted to the appellant a non-exclusive license to use, market, sub-license the software, documentation, 3rd party data base and 3rd party software to end users in the territory as assigned to the appellants which area is predominantly in India. In consideration of the above licenses and permissions, the appellant was required to make certain payments to the principals in Germany which was mostly from consideration received from the clients to whom the software was marketed. In this proceeding, Revenue is seeking to tax such payments made under provisions of Section 66A of Finance Act, 1994 on the basis that the appellant was receiving franchisee service from their principals in Germany.

Income Tax

Whether intangible assets,acquired, as commercial rights under a slump sale are entitled for depreciation - YES: ITAT

ASSESSEE, formerly known as Areva T & D Systems India Ltd merged with Areva T & D India Limited, had filed its ROI disclosing loss of Rs.97,06,238/-. Later on, it had revised its ROI and declared loss as Rs.1,05,41,362/-. As per assessee, the revision of ‘return' was attributed to merger of the earlier company with the present assessee with effect from 01.01.2006 as approved by the Delhi HC order. The FY in question was also restricted to April, 2005 to December, 2005. On 31.03.2008, assessee's return was processed u/s 143(1), during which AO noticed that the assessee had raised a claim of depreciation of Rs.3,11,01,728/- @ 25% on ‘goodwill'. As per assessee, the said payment had been made as excess of net value of the seller entity and accounted it as ‘goodwill'. The issue before the Bench is - Whether intangible assets acquired under slump sale are entitled for depreciation. And the verdict goes in favour of the assessee.

Central Excise

Rule 6 of CCR, 2004 - Whether supplier of materials u/r 4(5)(a) of CCR, 2004 has paid duty on final products - enquiry to be made with principal supplier before allowing CENVAT to manufacturer job worker - Matter remanded: CESTAT

ALTHOUGH the Larger Bench of the Tribunal in the case of Sterlite Industries (2005-TIOL-305-CESTAT-MUM-LB) has held that MODVAT credit of duty paid on the inputs used by the job worker in the manufacture of final product cleared without payment of duty in terms of notification 214/86-CE for further utilisation by the supplier in the manufacture of final product, which are cleared on payment of duty by the principal manufacturer, would not be hit by provision of Rule 57C of CER, the Revenue formations choose to look the other way.

See our Columns Tomorrow for the judgements

Today is Chaitra Sukladi, Ugadi, Gudi Padava, Cheti Chand, Navreh and Sajibu Cheiraoba. Celebrate and enjoy.

Until Tomorrow with more DDT

Have a Nice Day

Mail your comments to vijaywrite@taxindiaonline.com