TIOL-DDT 1111
15.05.2009
Friday

FROM DDT 1 to DDT 1111, it has been a long tortuous journey, gathering friends, foes, supporters and critics – all through the way. Only a few colleagues and I know the agony that precedes each DDT that reaches you, but at the end of 1111, each sleepless night was eminently worth the trouble. Adding three 1s to the right of that DDT 1 was certainly no easy task, but with your support and the way the Government works, I am confident that I can add at least one more 1 to the 1111 – here left, right or centre does not make any difference.

DDT thanks all its patrons and the Government who made it possible.

Anti Dumping Duty on Sodium Hydroxide, commonly known as Caustic Soda – yet another resurrection?

The original Anti Dumping Duty on Sodium Hydroxide, commonly known as Caustic Soda originating in, or exported from, the European Union (excluding France), Indonesia and Chinese Taipei was imposed by Notification No. 168/2003-CUSTOMS dated the 14th November 2003.

By Notification No. 39/2008 -Customs dated the 26th March, 2008, this was extended till 26th March, 2009.

So this anti dumping duty ended on 26.03.2009.

But the Designated Authority recommended continued imposition of definitive anti-dumping duty on imports of the subject goods, originating in, or exported from, Indonesia and the European Union (excluding France) and imported into India, in order to remove injury to the domestic industry.

So the Government has imposed a new anti dumping duty on Caustic Soda with effect from 13.05.2009.

But what about the imports during the period between 27.03.2009 and 12.05.2009? Was there no dumping during that period?

Notification NO. 48/2009 – Cus Dated: May 13, 2009

Service Tax Demand Notices being served through private couriers

We received this mail from a Mumbai Netizen.

I am an employee of a broking firm. My employer pays my salary as ‘professional fees.' Recently in the mailbox of my building premises, I found an envelope addressed by the Service Tax, Division IV of the Service Tax Commissionerate, Mumbai. The content is a ‘show cause notice' issued by an unnamed Joint Commissioner and addressed in my name demanding Service Tax of nearly ten lakhs rupees under the category ‘Business Auxiliary Services' for the period 2005 to 2008. On the reverse of the envelope was the slip of a Private Courier company who supposedly dropped the same in the mailbox.

I was aghast by the demand notice and my family members were in tears but after regaining my composure, I brooded over and the result is these questions –

• Can government communications be sent through private courier service?

• Can a demand notice be dropped in my mailbox and proceedings initiated by the department?

• Will such ‘serving' of notice be considered legal?

I am going to keep mum and when called for a hearing by another such ‘couriered communication,' I am not going to turn up and worse to worst if there is any person from the department knocking on my door, I am going to bluntly deny having received any notice or communication for none of them have been acknowledged by me. Will keep you posted Sir. One more thing, I happened to call up the courier company and was told that they were the blue birds in the trade.

An intelligent move that. By the way, if the Service Tax officers are unaware of the provisions of Section 37C of the Central Excise Act, 1944 as made applicable to Service Tax matters by Section 83 of the Finance Act, 1994, then the Board or the DGST should enlighten them.

Service of decisions, orders, summons, etc

The Mumbai Netizen has referred to Section 37 C of the Central Excise Act made applicable to Service Tax. The Section 37C reads as follows:-

37C. Service of decisions, orders, summons, etc.- (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder , shall be served,—

(a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any;

(b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;

(c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.

(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1).

So the provisions of (a), (b) and (c) have to be followed sequentially and sending it by courier does not figure in the list at all. Sending a notice by courier is not a mode recognised by law and so a notice served by courier is deemed to have been not served at all.

But why is the Department sending notices by courier? Is it free for them? The Postal Department runs a fairly efficient Speed Post System. Then why should the Government depend on private couriers?

Jurisprudentiol–Monday's cases

Central Excise

Suppression of fact is a question of fact, not a Substantial Question of Law - finding of fact by the Tribunal is final. It would be binding on the High Court while exercising its appellate jurisdiction – Supreme Court

WHETHER non furnishing of information was willful and would amount to suppression of material fact in terms whereof the extended period of limitation as provided for in Section 11-A of the Customs Act, 1944 could be invoked or not, was not a substantial question of law. The finding of fact arrived at by the Tribunal should have been treated to be final. It would be binding on the High Court while exercising its appellate jurisdiction. A `ubstantial question of law' would mean - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely.

Income Tax

The power to make assessment or reassessment, where the initiation has been made within four years would be attracted even in cases where there has been a complete disclosure of all relevant facts - 'reason to believe' cannot mean that the A.O should have finally ascertained the facts by legal evidence  - ITAT

WHERE, however, the period of four years has not expired, the conduct of the assessee regarding disclosure of material facts need not be the basis for initiating the proceedings and they can be commenced if the A.O has 'reason to believe' that the income has escaped assessment notwithstanding that there was full disclosure of material facts on record. The assessee in such cases cannot defend the initiation of action on the ground that the facts were already placed on record and that the A.O must have or ought to have considered them. The power to make assessment or reassessment, where the initiation has been made within four years of the end of the relevant assessment year, would be attracted even in cases where there has been a complete disclosure of all relevant facts upon which a correct assessment might have been based in the first instance, and whether it is an error of fact or law that has been discovered or found out justifying the belief required to initiate the proceedings.

Customs

Renewal of CHA Licence – No Appeal; Writ permissible in High Court; Hearing must before order – High Court

THERE can be no dispute that the order rejecting application has visited the petitioner with civil consequences. In a case where an order, whether it be administrative or quasi judicial, visits the party with civil consequences in absence of any statutory exclusion under the Regulations, there would be a right to a hearing. The right to hearing would include right to a person being heard in person if such a request is made.

See our columns Monday for the judgements

Until Monday with more DDT

Have a nice Weekend.

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