TIOL-DDT 856
1.5.2008
Thursday

A CUSTOMS OFFICER HAS THIS DOUBT:

In his reply to the debate on the Finance Bill and the amendments proposed, the FM has stated that “while changes in import duty rates will be effective today, changes in export duty will come into effect on the date when the Finance Bill, 2008 receives the assent of the President”.

But does the Finance Bill speak the same? Let us have a look at the proposals in the Finance Bill:

The original entry in the third schedule to the Finance Bill presented on 29.2.2008 reads as:

THE THIRD SCHEDULE
[ See section 72( ii )]

In the Second Schedule to the Customs Tariff Act, against heading No. 12, for the entry in column (3), the entry “Rs. 3000 per tonne ” shall be substituted.

By virtue of declaration made under the provisions of Provisional collection of taxes Act, 1931, the provisions of clause 72(ii) of the Finance Bill will come into effect immediately. Therefore the increase in the export duty on chrome ores and concentrates of all sorts to Rs 3000 per tonne will be with immediate effect, ie from 1.3.2008

Now in the amendments proposed in the Finance Bill, the third schedule has been substituted as

'In the Second Schedule to the Customs Tariff Act, -

( i ) against heading No. 12, for the entry in column (3), the entry "Rs. 3000 per tonne " shall be substituted;

(ii) after heading No. 26 and the entries relating thereto, the following shall be inserted, namely : -

So, the Second Schedule to the Customs Tariff Act has been proposed to be amended as above and clause 72(ii) of the Finance Bill which will come into effect immediately as per the Declaration made under the Provisional Collection of Taxes Act. Therefore unless there is an exemption notification from the export duty, all the goods above will attract export duty at the rates mentioned in the above table with effect from 28.4.2008.

Similarly the First Schedule to the Central Excise Tariff Act has been now amended as mentioned in the seventh schedule of the Finance Bill as under:

(2) in Chapter 25,

( i ) in tariff item 2523 10 00, for the entry in column (4), the entry "Rs. 450 pertonne " shall be substitute;

(ii) in tariff items 2523 29 10, 2523 29 20, 2523 29 30, 2523 29 40 and 2523 29 90, for the entry in column (4), the entry " Rs. 900 per tonne " shall be substituted against each of them'.

The seventh schedule refers to clause 84 of the Finance Bill which also has immediate effect as per the declaration under the PCT Act. Therefore the duty of Rs 900 PMT on cement will be with immediate effect ( from 28 th April 2008) in absence of any notification to the effect of 12% ad valorem as stated by the FM.

We would be grateful if the Board clarifies this at the earliest, so that SCNs don't fly around and exports and clearances are held up.

Maize Starch – not exempted before 30 th April 2008?

In his reply to the debate, the FM said:

Tapioca starch is manufactured primarily by a large number of small, unorganized units. Owing to a hefty increase in the volume of imports, the Government had imposed a safeguard duty on this item in the year 2005-06 for a period of three years. This levy expires on 1 st May, 2008. In the meanwhile, the flood of imports continues. In order to allow some additional flexibility to this industry to adjust, I propose to increase the basic customs duty on this item from 30% to 50% with effect from 1 st May 2008 coinciding with the expiry of the safeguard duty.

To carry out the above objective, entry no 446 of the Notification 22/2001 Cus has been amended vide Notification 56/2008 Cus dated 29 th April 2008 as under:

against S. No. 446, for the entry in column (2), the entry “1108 12 00” shall be substituted

Prior to this amendment, the entry in column (2) was:

1108 12 00 ( Maize starch) , 1108 14 00, ( Manioc Starch) 1108 19 10 (Sago Starch) or 1108 19 90 ( Other Starch)

So with effect from 1.5.2008, the three types of starch mentioned above will be out of exemption Notification. But how do they amend the notification? If the entry is substituted with effect from the date of issue of notification, ie , 29.4.2008, there will be no exemption for the other three products on 29 th and 30 th of April 2008. Therefore in the preamble of the Notification, the following line has been inserted:

Provided nothing contained in this notification shall apply to

“( iaf ) the goods specified against serial No. 446 of the said Table on or before the 30 th day of April, 2008.”

Since the FM's speech is fresh in our memory we can understand the amended notification correctly. But after a couple of months, if somebody reads this notification, it sounds as if the goods falling under chapter heading 1108 1200 (Maize starch) are not eligible for exemption before 30 th April 2008. Instead of all this confusion, the Board could have waited for a couple of days and amended the entry 446 in Notification 21/2002 Cus on 1.5.2008 by a separate notification.

Service tax is not to be included for computing the TDS on rental income – CBDT clarifies

CBDT has received representations seeking clarification whether the Service Tax element has to be included for computing the TDS in case of rental income. The Board has clarified that service tax paid by the tenant doesn't partake the nature of "income" of the landlord. The landlord only acts as a collecting agency for Government for collection of Service Tax. Tax deduction at source ( TDS ) under sections 194-I of Income Tax Act would be required to be made on the amount of rent paid/payable without including the service tax.

CBDT Circular No 4/ 2008 , Dated: April 28, 2008

FDI allowed in Credit Information Companies and Commodity Exchanges

It has been decided in consultation with the Government of India to allow foreign investment in Credit Information Companies in compliance with the Credit Information Companies (Regulations) Act 2005 and subject to the following :

i ) The aggregate Foreign Investment in Credit Information Companies would be 49%.

ii) Foreign Investment upto 49% would be allowed only with the prior approval of FIPB and regulatory clearance from RBI.

iii) Investment by SEBI Registered FIIs would be permitted only through purchases in the secondary market to an extent of 24%.

iv) Investment by SEBI Registered FIIs would be within the overall limit of 49% for Foreign Investment.

v) No FII can individually hold directly or indirectly more than 10% of the equity .

Also FDI has been allowed in commodity exchanges subject to certain conditions.

Circular No 40/ RBI and 41/RBI both dated 28 th April 2008

Claim for interest on delayed refund of duty drawback, Terminal excise duty etc – ANF 8A notified

DGFT has notified the Aayat Niryat Form ANF -8A for the purpose of claiming interest on the delayed refund of Duty drawback / Terminal excise duty on deemed exports / Central Sales Tax on supplies to EOUs . The claim for interest may be filed before the concerned Regional Authority/ Development Commissioner. The HBP has been amended accordingly.

DGFT Public Notice No 10 /( RE-2008)/ 2004- 2009.Dated : April 29, 2008

Exchange rates notified for export and import.

Exchange rates for the purpose of export and import have been notified with effect from 1 st May 2008 vide Notification No 39/2008 Cus (NT) dated 28 th April 2008.

NOTIFICATION NO 39/2008- Cus ., Dated: April 28, 2008

Jurispruden tiol  – Tomorrow 's cases

Customs

Import - tiles imported by the appellant are only glazed tiles which requires a lincence under the Exim Policy – Supreme court upholds the findings of the Tribunal

From the reading of the report of CRCL and the distinction between the unglazed and glazed tiles pointed out by the appellants in their correspondence with the Department, it is evident that the imported goods were not unglazed but glazed which was classifiable under tariff heading 6908.90. License of import for such goods was required, as per policy, before importing which the appellants admittedly did not have. In view of the report submitted by the CRCL , which is an expert body, we are of the opinion that the tiles imported by the appellants were glazed tiles and were liable to be classified under tariff heading 6908.90. Reasons recorded by the Tribunal in affirming the order passed by the Commissioner of Customs are perfectly valid and we do not find any reason to disagree with the same.

Service Tax

Security Agency Services – Tax cannot be assessed on assumptions and presumptions - just by looking at the returns no one can state whether the appellants were paying tax on the gross amounts or supervision charges – Demand not hit by limitation – Tribunal.

Before the Tribunal, the appellants stated that they honestly believed that it is their service of providing personnel to clients which was liable to Service Tax and accordingly they paid Tax on Service Supervision Charges computed as percentage of reimbursement of actuals ' of statutory Minimum Wages, EPF & ESIC contribution etc. According to them, the same was truly and honestly disclosed to the Department. Inasmuch as since they are under legal obligation to disclose only Primary Material facts and not the Inferential Facts, non-disclosure of Inferential Facts does not give jurisdiction to authorities to issue Show Cause Notice for an extended limitation period.

Customs

Consignment of Diamond Studded Jewellery destined for export from 100% EOU waylaid & robbed by an armed gang - No cause for effecting any recovery of duty in terms of Section 72 of the Customs Act -Tribunal.

The Commissioner (Appeals) arrived at the conclusion that the adjudicating authority's order is liable to be set aside inasmuch as the provisions of Section 72 were not applicable to the facts of the case as the goods had been duly accounted for and cleared from the EOU for export in accordance with the procedure prescribed.

See our columns tomorrow for the judgements

Until tomorrow with more DDT

Have a nice day.

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