Gone are the days when raiding parties like the super sleuths of DRI, DGCEI or the humbler local preventive parties and investigative teams from the Income Tax would come with truckloads of records after every raid. Private records, insignificant chits hiding volumes of information leading to tons of money have given way to microchips, pen drives and iPods. The munimji has withdrawn in favour of mind boggling software housed in miniature devices like the pen drive. These gizmos that can fit into a wallet can store data up to 30 GB. The so called incriminating documents will now be found not in the godowns but maybe in the pockets of the evaders. So raiding parties have to be doubly careful to recover these fancy gadgets during the raids. But these can be destroyed or transferred easily like they can be thrown into a burning stove or crushed under the foot before the raiding party can say ‘Search’. But how far is the evidence valid? Have a look at Section 36B of the Central Excise Act, which is extracted below for your ready reference.

36B. Admissibility of microfilms, facsimile copies of documents and computer print outs as documents and as evidence.- (1) Notwithstanding anything contained in any other law for the time being in force,—

(a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or

(b) a facsimile copy of a document; or

(c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer print out"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely:—

(a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and

(d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,

(a) identifying the document containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section,—

(a) "computer" means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and

(b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

Review of Service Tax Circulars

The government is planning to undertake an extensive review of all circulars and instructions relating to service tax issued since 1994. The review is to be undertaken by Mr. T. R. Rustagi, former Joint Secretary, TRU. Now the government has invited suggestions from trade and industry, departmental officers and all others concerned on the proposed review. The suggestions can be sent to Mr Rustagi or to the TRU by the 3^rd of July, 2006. There are hardly 200 circulars issued in the last 12 years of Service Tax and it is rather easy to review them. Incidentally, Mr. Rustagi must have been responsible for most of these circulars.

But there are over 2000 circulars each in Customs and Excise and reviewing them would be a Herculean task. But it is certainly worth undertaking as certainty is one of the cannons of taxation. To take the review a step further, the courts and the tribunals should also undertake a review of all the orders passed by them, at least once in every ten years. All those cases which have precedential value should be identified and the rest of the cases should be unceremoniously dumped into the dustbins of history. These dumped cases should never be allowed to rise like the Phoenix, to be cited before any judicial proceedings. This would make the case law also reasonably manageable.

Committee of Commissioners - Jurisdiction renotified – Who is Customs Commissioner Vizag I?

Ever since four commissioners were appointed to hear appeals in Visakhapatnam, the Board was finding it difficult to understand the intricacies of jurisdiction for these Commissioners. Office orders, circulars, oral instructions and notifications have all added to the confusion which TIOL has been highlighting regularly. Now the Board has appointed the committees of commissioners to review the orders passed by these four commissioners (appeals) ofVisakhapatnam. Doesn’t it mean that all these days there was no committee to review the orders of these commissioners and if any committee was reviewing them it was without jurisdiction? And if any case is lost because of the lack of jurisdiction, who should be held responsible?

And as usual, every rectification by the Board invariably leads to another mistake which has to be corrected later. Now the committee to review the customs orders passed by the four Appellate commissioners of Vizag includes the Commissioner of Customs Visakhapatnam I. No problem on this except for the fact that there is only one Commissioner of Customs in Vizag and there is no post designated as Commissioner of Customs Visakhapatnam I. This would mean we are back to square one. No review of orders of these commissioners.

NOTIFICATION NOs. 63 and 64/2006-CUSTOMS (NT) and 14/2006-CENTRAL EXCISE (NT) Dated : June, 9 2006.

Target Plus Scheme - DGFT amends

Under the Target Plus scheme, the duty credit as a percentage of incremental growth in exports were five percent for growth between 20 and 25%, ten percent for growth between 25% and 100% and fifteen percent of hundred percent for growth above 100%. Now this is changed to a flat rate of 5% of the incremental growth subject to the condition that there should be a minimum incremental growth of 20%.

DGFT Notification No. 8/2004-09 dated June 12th, 2006

We are not here to harass anyone- Income Tax CC

The Mumbai Chief Commissioner of Income Tax, H. Tulsian, referring to the Amitabh Bachchan notices said, “We are not here to harass anyone. If notices have been issued to anyone, the concerned person has to reply while the law will take its own course.” Here the Income Tax chief was really referring to the concerned person and not the person concerned as anyone who gets a notice from the income tax should be concerned.

Import of Wheat under zero duty – date extended and Mumbai port added

As per public notice no. 7/2006, import of 30 lakhs MTs of wheat was allowed under zero duty, subject to the condition that the imports are made by 30^th November 2006 and through certain specified ports. Now this date is extended till 31^st March 2007 and Mumbai port is added.

DGFT PN Number 18/2006 dated June 12th 2006.

If my decomposing carcass helps nourish the roots of a juniper tree or the wings of a vulture - that is immortality enough for me. - Edward Abbey,naturalist and author (1927-1989)

Until tomorrow with more DDT

Have a nice day.

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