TIOL-DDT 2182
04.09.2013
Wednesday

WE are informed by the Advocate concerned:-

Yesterday (3rd September 2013), the Division Bench of Delhi High Court, comprising of Chief Justice N.V. Ramana and Justice Pradeep Nandrajog has issued notice to the Government of India through Ministry of Finance as well as Ministry of Commerce and Industry in a writ petition, inter alia challenging the validity of Rule framed for "export of services", which came into force with effect from 1 st July 2012 for seeking their response by giving four weeks' time and fixed up the next date of hearing on 24th of October 2013.

The writ petition has been filed by Indian Association of Tour Operators. The Association earlier approached the Ministry of Finance seeking the benefit of export of service to the "tour operators" engaged in providing services to the foreign nationals against convertible foreign exchange, as it has huge potential to our foreign exchange for India and also it plays pivotal role in employment generation in India. ASSOCHAM had also made a representation to the Ministry of Commerce and Industry regarding the "export of services" highlighting that there is no clarity in the principle of defining "export of services" in India, which is leading to lot of problems and litigations and also highlighted that tour operators who provide services to the foreign tourist and earn huge foreign exchange are not being treated as exporters of services. The petitioner has stated that there was no response for the representation made to the Government of India.

The Rule 6A of Service Tax Rules, 1994 has been framed to define "export of services", which goes beyond the rule making powers as the said rule only applies to non-taxable service i.e. where the place of provision of services is outside India. The Association in their writ petition has stated that the same services prior to 1st July 2012 were treated "export of services" and were not taxable, but become taxable with effect from 1st July 2012 due to change of Rules, even if the services are provided against the convertible foreign exchange to the foreign nationals for operating package tour in India and neighbouring country, thus, it makes Indian tour operators non-competitive. The Association has stated in the writ petition that the Rule framed by the Ministry of Finance regarding "export of services" is also against the Foreign Trade Policy (FTP) framed by the Ministry of Commerce and Industry, which states that if consideration is received in free foreign exchange by a tour operator, it would be considered as service exports.

'ANNEXURE 63' not typed on Centre of page - LUT rejected

THE whims and fancies of babudom know no limits. An Assistant Commissioner of Central Excise rejected an LUT - Letter of Undertaking because the caption ‘Annexure 63' was typed on the left hand top of the page and not at the centre top of the page! The same Assistant Commissioner rejected another LUT because it was made in favour of the Assistant Commissioner and not ‘Assistant Commissioner or Deputy Commissioner as the case may be'.

Export is a national priority and all officers of the Government are expected to support, promote and facilitate exports, but can you imagine responsible officers of the Department putting spokes with trivial objections?

Now there is nothing like an official "Annexure 63" - this is the number given by a publisher for his convenience and this Assistant Commissioner who must be having a copy of the book must have taken it as sacred Veda from which an inch of change is sacrilege. This is not even a statutory form. Government has allowed the facility of LUT instead of bond for manufacturers for export of goods. This LUT is valid for a period of one year and after the expiry of one year another LUT can be filed.

This Assistant Commissioner has just joined the department and he has already learnt how to harass his assessees. Didn't NACEN teach him that he is a public servant and not a master?

This point was raised recently in the RAC meeting of a Central Excise Zone and the Department replied -" the concerned Division has been instructed so that such confusions do not arise ."

We only hope the assessee concerned does not face the music.

Duty Exemption on Machinery for LR-SAM - Missed Missiles but ASTRA on time!

MACHINERY, equipment, instruments, components, spares, jigs, fixtures, dies, tools, accessories, computer software, raw materials and consumables required for the Long Range Surface to Air Missile (LR-SAM) Programme of Ministry of Defence, were first exempted from excise duty by Notification No. 30/2007 -CX dated 10.07.2007, by inserting a new Sl. No. 25 to the table in Notification No. 64/95-Central Excise, dated the 16th March, 1995. This was valid only till 31st May 2011.

As usual, the babus forgot all about this notification lapsing in May 2011. They woke up a little later and reintroduced this exemption by Notification No. 34/2011 - Central Excise, dated 19th July 2011 by inserting another Sl. No. 29 in the table to Notification No. 64/95-Central Excise, dated the 16th March 1995. And this was valid till 25th day of November 2011. Again, in November 2011, the experts in the Board forgot about this notification and they woke up and issued a notification in February 2012 inserting another Sl. No. 30 in Notification No. 64/95-Central Excise, with identical words and this new exemption was valid till 25th May 2012 (Notification No. 4/2012 - CE Dated 9.2.2012). As usual on (or before and after) 25th May 2012, they were sleeping.

They woke up again in October 2012 and issued Notification No. 38/2012 CE, dated October 18, 2012 inserting another Sl. No. 31 in Notification No. 64/95-Central Excise, with identical words and this new exemption was valid till 25th November 2012.

In DDT 1967- 22.10.2012, we had mentioned , "We can be sure it will not be extended before 25th November 2012."

You don't need to know Rocket Science to predict that CBEC cannot renew a sunset notification before sunset.

So, after three months, they issued Notification No. 4/2013-CE dated 20.2.2013 inserting a new Sl. No. 33 in Notification No. 64/95-Central Excise, with identical words and this exemption was valid till 25th May 2013. We reported this in DDT 2051.

Again in May 2013, they forgot to extend the notification. They woke up after three months and have now issued another notification inserting a new Sl. No. 35 with identical words and this exemption is valid till 1st January 2016. So, now that the period is longer; they can safely sleep for more than two years.

The position now is that in the table to the Notification No. 64/95-Central Excise, dated the 16th March 1995, there are six Sl. Numbers 25, 29, 30, 31, 33 and 35 giving the same exemption and there was no exemption during the period 01.06.2011 to 18.07.2011, 26.11.2011 to 08.02.2012, 26.05.2012 to 17.10.2012, 26.11.2012 to 19.02.2013 and 26.5.2013 to 29.8.2013

Of course, there is consistency. The Customs Notification No. 39/1996-Cus dated 23.7.1996 has been similarly messed up and now has the same exemption in Sl. Nos. 32, 35, 38, 39, 41 and 43 of the table.

Was there no public interest in giving these exemptions during these drowsy periods? Maybe the Defence Ministry should remind the Revenue Department, at least a month before expiry of these notifications.

The Board should seriously consider job work for its notification manufacturing activity.

Now, for the good news. There is a Just in Time amendment to both these notifications 64/95-CE & 39/96-Cus.

Serial no. 34 to the notification 64/95-CE grants exemption to ‘Equipment and Stores' supplied to the Project ASTRA of the GOI in the Ministry of Defence. As per the Explanation, this exemption shall NOT have effect on or after the 1st day of September, 2013.

A similar Customs duty exemption but with a larger coverage is available at Sl. No. 42 to Machinery, equipment, instruments, components, spares, jigs and fixtures, dies, tools, accessories, computer software, raw materials and consumables required for the purpose of Air-to-Air Missile System (Project ASTRA) of the Ministry of Defence. This exemption too would have lost its sheen on or after the 1st day of September, 2013.

Fortunately, someone looking after the ASTRA project was aware of this deadline and got the exemption revived before it died a natural death and that too for a longer period than the exemption available for the LR-SAM programme.

The Central Government has without much fuss and with a deft amendment extended this exemption by simply substituting the figures, letters and words "1st day of September, 2013" with the figures, letters and words "1st day of January, 2017".

Incidentally, these exemptions to the ASTRA project also shared a similar glorious past as the LR-SAM programme & which have been captured in DDT 1987 & 2074.

Notification No. 26/2013-CE, Dated: August 30, 2013 and

Notification No.42/2013-Cus, Dated: August 30, 2013

Customs Declaration by Domestic Passengers

YESTERDAY, DDT-2181 reported about the baggage declaration required to be filed by passengers landing in India. But are domestic passengers required to file a declaration? The other day I was travelling in a domestic sector of an international flight of Air India.

As I was checking in, I was given a Form, ‘Declaration of domestic passengers travelling by Air India Flight'.

I was asked to fill up the form and give it just before boarding the aircraft. I was supposed to declare that I do not possess the following articles or that I have valid customs clearance documents for them. The form was to be signed before a Customs Officer and to be countersigned by the Customs escorting officer.

1. Watches, watch movements or parts thereof - of foreign origin

2. Transistors and diodes (when did you last see them?)

3. Photographic cameras including Video Cameras

4. TV sets

5. VCRs, VCPs and Video Tapes (who has them these days?]

(All the goods listed at S.Nos. 1 to 5 above are also available in a single instrument called a cell phone - a majority of the cell phone models available in the market these days have all these features in-built into a single instrument. Nowadays every person has a fancy of buying a cell phone with all these features and they also travel by air and more likely end up in international flights for reaching domestic destinations. So, how about declaring a cell phone and more so a cellphone with all the above technological features. What is the point?)

6. Zip fasteners

(Every passenger wearing clothes may invariably have a zip fastener sewn to the garment covering their upper half or lower half - so what is the Customs gaining out of this piece of declaration. Hope they don't ask for a physical examination - and what about those hand bags which have these "zips" in abundance?)

7. Any other electronic items

8. Gold bullion and gold jewellery

(Gold jewellery is fashionable. These days' men are wearing more jewellery than women. And can't I carry a laptop or a flash drive?)

9. Silver bullion and coins

10. Foreign currency

11. Indian currency beyond Rs. 5000/-

(Are we living in medieval times? With inflation touching double digits, a bag of onion is costing Rs. 5000/-. So, what are we trying to prove if we catch a person travelling with more than Rs. 5000/- that too to a domestic destination? Nowadays, banks are issuing international debit cards with far higher ceiling for cash withdrawal. What is the sanctity for this Rs. 5000/-?)

12. Any other dutiable/imported item

(All the goods tucked into a suitcase/ briefcase, worn by the passenger are dutiable goods. Will there be any dispute on that?)

I asked where the Customs officer before whom I was to sign this declaration was - the Air India official told me that he would come inside the aircraft - but that is supposed to be an escort officer. Anyway inside the aircraft, I did not find any Customs Officer.

With such out-dated declaration forms, what is the Customs or for that matter Air India trying to prove? Why should we waste time and paper in such ridiculous activities?

I wrote about a similar episode three years ago in DDT 1321, but the system continues. Air India seems to have had their cadre review long ago - they had an officer just to collect these forms.

Jurisprudentiol – Thursday's cases

Central Excise

Modvat - Bought out items exported as such along with machinery for setting up a plant in Vietnam - No Credit: SC

INPUTS/Capital Goods - Bought out items exported as such along with the machinery manufactured by the assessee for setting up a sugar plant in Vietnam. No duty paid on the sugar plant; To avail the MODVAT credit, the input on which excise duty is paid must be used in the manufacture of the final product in the factory of the assessee. The machinery purchased by the appellant had not even been tested or was not even unwrapped in the factory of the appellant. In case of such an admitted fact, it cannot be said that the machinery so purchased from others was used by the appellant in the manufacture of the sugar plant. In the instant case, the appellant had only acted as a trader or as an exporter in relation to the machinery purchased by it, which had been exported and used for setting up a sugar plant in a foreign country. In any case, it cannot be said to have manufactured that plant in its factory. Tribunal is correct in denying Modvat Credit.

Income Tax

Whether when company in question is a company in which assessee has controlling stake, loan given to assessee or partnership firm in which assessee is having controlling interest, is to be treated as deemed dividend - Sahara Chief loses battle against Revenue: HC

THE issues before the Bench are - Whether AO has rightly disallowed interest expenditure on loan observing that by making investment of borrowed interest bearing funds for non productive purpose, assessee diverted his income and adopted a colourable device to reduce tax liability; Whether the rent-free accommodation provided to the assessee is perquisite even though the assessee was doing official work from there and Whether when the company in question is a company in which assessee has been controlling its affairs and possessing a block of majority shares, loan given to assessee or the partnership firm in which assessee is having controlling interest, is to be treated as deemed dividend. And the assessee loses the battle.

Service Tax

Order passed in remand proceeding - No precedent for Commissioner to have passed strictures against Tribunal nor any authority for such brazen insubordination to appellate jurisdiction and without comprehension of limitation of his jurisdiction and limits of his authority - Order quashed: CESTAT

COMMISSIONER has wholly misconceived the limits of his jurisdiction pursuant to the specific order of remand passed by this Tribunal, vide the judgment dated 6.5.2011 and has tried to overreach and trench into the domain of this appellate authority. The impugned adjudication order is also wholly bereft of independent analysis and determination of the issues raised. There is neither any analysis nor discussion on the elaborate written submissions filed by the assessee on 28.7.2011 nor of the precedents referred to or cited during the course of personal hearing. The approach towards this critical quasi-judicial function is laconic, casual, flippant and wholly negligent. No speaking order was passed recording independent reasons, despite the direction in the judgment of this Tribunal in para 12 of the earlier judgment, to do so.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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