TIOL-DDT 2614
08.06.2015
Monday

CBEC sprang a surprise Service Tax Circular clarifying on rate of service tax on restaurant service.

It is not known as to who had the doubts and who asked the Board for clarification but in clarifying the obvious, Board has committed a blunder.

Board clarifies:

1. Valuation of services provided in relation to serving of food or beverages by a restaurant, eating joint or a mess having the facility of air-conditioning or central air-heating in any part of the establishment, is determined as provided in rule 2C of the Service Tax (Determination of Value) Rules, 2006.

2. In the said rule, service portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity, at a restaurant has been specified as 40 percentage of the total amount charged for such supply.

4. In Budget, 2015, no change has been made in abatement and the rate of service tax on the abated value has been increased to 14% with effect from 1st June, 2015.

5. Therefore, effective service tax rate would be 5.6% (14% of 40%) of the total amount charged.

Doesn't everybody know these elementary principles? Who would take the risk of asking the Board for clarifications on these?

Now comes the surprise. Board clarifies:-

Hence, with the increase in the applicable rate of service tax from 12.36% (including education cesses) to 14%, the effective rate on such establishments has increased from 4.9% to 5.6% of the total amount charged.

So, the Board says that 40% of 12.36 is 4.9%. By normal arithmetic, it is 4.944%; maybe Board has adjusted it to one decimal place. But is that permissible? Instead of paying a tax of Rs.4944, will the Board accept a payment of Rs. 4900? Will they give a refund of Rs. 44 to all those who paid 4944? If the tax payable is Rs. 49,44,000, according to the Board, it is enough if you pay Rs. 49,00,000.

It is not understood as to why the Board should go out of its way to confuse assessees and with patently wrong clarifications. I was strongly advocating the appointment of an English teacher in the Board; now I think they need a maths teacher too. CBEC should collaborate with CBSE. There used to be a JS, TRU whose love for formulas had caused complex problems and suffering.

There are important issues crying for Board's attention, like the issue of balance of CENVAT Credit of Education Cess. Instead of clarifying such issues Board embarks upon this kind of misadventures and tells the world that they are a little weak in elementary arithmetic.

Board wants the Chief Commissioners to give wide publicity to the Board clarification - that 40% of 12.36 is 4.9%.

CBEC Circular No. 184/3/2015-ST, Dated: June 03, 2015

CBEC Appoints Adjudicators for DRI cases

CBEC has appointed several officers as adjudicators for various DRI cases.

Notification Nos. 53, 54, 55, 56, 58 & 59/2015-CUS(N.T.), Dated: June 04, 2015

Appointment of officers - CBEC Powers Delegated to DRI Chief  

AS per Section 152 of the Customs Act, the Central Government may, by notification in the Official Gazette, direct that subject to such conditions, if any, as may be specified in the notification - (a) any power exercisable by the Board under this Act shall be exercisable also by a Chief Commissioner of Customs or a Commissioner of Customs empowered in this behalf by the Central Government;

In exercise of these powers, the Government has now delegated the powers of the Board to Principal Director General, Directorate General of Revenue Intelligence, New Delhi for appointing officers of the rank of Commissioner of Customs or Additional Director General of the said Directorate for the purpose of adjudication of cases investigated by that Directorate.

Now, DRI officers, instead of jurisdictional officers, will do the formal confirmation of the demands in the Show Cause Notice. Intelligence, investigation, intimidation, third degree, notice and adjudication will all be done by the same agency.

Notification No.60/2015-CUS(N.T.), Dated: June 04, 2015

Anti Dumping Duty on Stainless Steel HR Flat Products

GOVERNMENT has imposed anti dumping on Hot Rolled Flat Products of Stainless Steel of ASTM Grade 304 with all its variants falling under headings 7219 or 7220 of the First Schedule to the Customs Tariff Act originating in, or exported from People's Republic of China, the Republic of Korea and Malaysia.

This is declared to be valid for a period of five years.

Notification No.28/2015-Customs (ADD), Dated: June 05, 2015

CX - Exemption to Ethanol

GOVERNMENT has exempted Ethanol produced from molasses generated from cane crushed in the sugar season 2015-16 i.e. 1 st October, 2015 onwards, for supply to the public sector   oil marketing companies, namely, Indian Oil Corporation Ltd., Hindustan Petroleum Corporation Ltd. or Bharat Petroleum Corporation Ltd., for the purposes of blending with petrol.

Notification No.32/2015-Central Excise, Dated: June 04, 2015

Import from Bangladesh - More land routes added

COINCIDING with the Prime Minister's two-day visit to our neighbouring country, the Central government has added more land routes for import of agri items from Bangladesh by amending notification 60/2011-Cus.

This notification is effective from 06.06.2015.

Notification 36/2015-Cus, Dated: June 4, 2015

Expeditious disposal of applications for rectification under Section 154 of  Income-tax Act

THE CBDT in a letter to all Principal Chief Commissioners, states:

1. Expeditious redressal of taxpayers' grievances has been identified as a key result area in the current years Action Plan.

2. In the recently held 31st Annual Conference of PCCsIT/PDGsIT/CCsIT/DGsIT at New Delhi, the Union Finance Minister in his key-note address has also exhorted the Income-tax Department to be prompt in redressing the grievances of taxpayers.

3. It has been a matter of concern that the rectification applications u/s 154 filed by the taxpayers before the field officers are not being dealt with promptly.

4. The Citizen's Charter of the Department requires that applications for rectification are to be disposed of within two months from the end of the month in which application is received.

5. As per the Interim Action Plan for the first quarter of FY 2015-16, all rectification applications that were received up to 31st March 2015, were required to be disposed by 15th May, 2015. 

6. It may also be noted that CBDT vide Circular No. 8/2015 dated 14.05.2015 has brought out on SOP for verification and correction of demand. The procedure prescribed therein would lead to correction of disputed demands and shall help in mitigating the grievances to a large extent.

Board wants the Assessing Officers to promptly settle the grievances related to verification of demand.

The Board concludes, The Income-tax Department is committed to prompt redressal of taxpayer grievances and all the officers of the Department are expected to take lead in fulfilling this commitment.

CBDT F. No. 225/148/2015-ITA-II., Dated June 05 2015

India's Import Regime remains Complex - WTO Report

THE WTO report on the Trade Policy Review of India published recently states:

India's trade policy is largely driven by domestic supply considerations and also intended to attain short-term objectives, such as containing fluctuations in commodity prices. This requires constant fine-tuning of policies, for example, through notifications by the Directorate General of Foreign Trade (DGFT) and Customs, rendering the trade regime less predictable and creating additional costs.

India is an original Member of the WTO. India is a strong advocate of the multilateral trading system and has historically been party to few regional trade agreements. However, despite India's reservations, regionalism has increasingly become an element of its overall trade policy objective of enhanced market access for its exports. This is evidenced by the 15 agreements currently in force and its involvement in the negotiation of other agreements.

India's trade policy objectives are stipulated in its Foreign Trade Policy (FTP), which is issued every five years, but revised periodically to take into account internal and external factors. The new 2015-20 FTP, released on 1 April 2015, aims to make India a significant participant in international trade and to raise its share of global exports to 3.5% in 2020. This is expected to be achieved by providing a sustainable and stable policy environment for foreign merchandise and services trade; linking rules, procedures and incentives for trade with other recent initiatives such as "make in India", "digital India" and "skills India"; promoting the diversification of India's exports by assisting key sectors to become more competitive; and creating an architecture for India's engagement with key regions of the world.

India has continued to streamline customs procedures and implement trade-facilitation measures. With a view to facilitating trade, India adopted the use of self-assessment in its customs procedures in 2011, and around 97.6% of India's imports were processed via the risk management system. Despite the implementation of these measures, India's import regime remains complex, especially its licensing and permit system, and its tariff structure, which has multiple exemptions, with rates varying according to product, user or specific export promotion programme.

In general, the value of imports is based on the transaction value. A landing charge (for loading, unloading, and handling) of 1% is added to the c.i.f. value, to calculate the transaction value. India uses "tariff values" (reference prices), to calculate customs duty levied on imports of certain palm oils, crude soybean oil, poppy seeds, brass scrap, gold, silver, and areca nuts. These reference prices are, in principle, revised every two weeks and adjusted to align them with international market prices.

India's tariff is announced in the annual Budget; however, individual tariff rates may be changed during the fiscal year. In addition to the standard tariff rate, importers are required to pay an additional duty and a special additional duty instead of local taxes. To determine the "effective" applied tariff rate (i.e. basic duties and other customs duties) on a particular product, separate customs and excise tax schedules must be consulted, which adds to the complexity of the tariff. India's tariff comprises mainly ad valorem rates (around 94% of tariff lines), levied on the c.i.f. value of imports, and some alternate or specific duties (6.1% of tariff lines).

India's WTO bound tariff levels are much higher than the applied rates, especially for many agricultural products. These gaps allow the Government to modify tariff rates in response to domestic and international market conditions, but at the same time, they reduce tariff predictability.

India is one of the most active users of anti-dumping measures among WTO Members; it initiated more than 80 anti-dumping investigations against 23 trading partners between 2011 and 2014. Indian legislation provides for levying anti-dumping duty retrospectively, where it is deemed that there is a history of dumping that caused the injury or when the injury is caused by massive dumping, in a relatively short time. The retrospective application may not go beyond 90 days of the date of imposition of a provisional duty. No retrospective application prior to the date of initiation of an investigation is allowed. The authorities state that no retrospective application of duties took place during the period under review.

Litigation Loving Revenue - Chronicle of a Chronic Disease

1. AN order was passed by a Commissioner on 19.03.1998.

2. On appeal, the Tribunal by an order dated 23.06.1998 remanded the matter to the Commissioner.

3. The Commissioner on remand passed an order dated 07.11.1998, reaffirming his early order.

4. The assessee again appealed to the Tribunal and the Tribunal again remanded the matter to the Commissioner by an order dated 09/21.03.2001.

5. The Department appealed to the High Court against the above Tribunal order, which was rejected on merits.

6. The Commissioner again passed an order on 14.10.2005, ignoring the Tribunal's remand directions.

7. The assessee approached the Tribunal in appeal for the third time; the tribunal by an order dated 07 05 2014, again remanded the matter, but this time imposed a cost of Rs. 10,000 on the department.

8. The Department was deeply aggrieved and took the matter in appeal to the High Court.

9. The High Court by an order dated 03 07 2014 (2014-TIOL-2563-HC-ALL-CX) dismissed the Revenue appeal.

While remanding the matter for the third time, the Tribunal observed,

Since this appeal is the result of indisciplined and perverse analysis and conclusions recorded by the ld. Commissioner and has caused avoidable litigative trauma to the appellant and wastage of public resources in terms of time consumed by this Tribunal to deal with a clearly avoidable litigation, we allow the appeal with costs of Rs. 10,000/- (Rupees Ten Thousand only) payable to the appellant.

While dismissing the Revenue appeal, the High Court observed,

In our view, the Tribunal has furnished adequate and cogent reasons for imposing costs. The Commissioner was, by the order of remand that had been passed by the Tribunal on 9 May 2001, required to make a specific determination. The Tribunal has observed that the Commissioner had failed to carry out the terms of the remand and had decided the case in an indisciplined and perverse manner. We are not inclined to entertain the appeal on the issue of costs, particularly when the Tribunal has furnished cogent reasons. No substantial question of law is raised. The appeal is dismissed.

What started in 1998 is still at the starting point after going through the Tribunal thrice and the High Court twice. Just imagine the amount of time and money wasted and the number of officers who have worked hard and were paid heavily by the taxpayer, to perpetuate this perverted litigation. And it is only the beginning.

Recently a case came up in the Tribunal in which the Commissioner on remand had held, "earlier adjudication order holds good and needs no interference" - that was the order that was set aside by the Tribunal!

Until Tomorrow with more DDT

Have a nice day.

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