TIOL-DDT 2334
16.04.2014
Wednesday

CONSERVATION of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, a.k.a COFEPOSA was a dreaded legislation during the emergency and the heydays of smuggling. Once in a way this apparently draconian law raises its head.

A COFEPOSA case was decided by the Supreme Court yesterday.

A person was arrested by DRI on 17th of November 2012 on charges of trying to smuggle out red sanders and was promptly released on bail. The same day DRI proposed detention under COFEPOSA. The detaining authority passed order of detention on 6th of May, 2013. It was served on the detenu on 11th of June, 2013.

The detenu's wife challenged his detention by writ petition before the High Court which dismissed the petition. She is in appeal before the Supreme Court against the High Court order. Her main grounds of appeal were that the order of detention as well as execution of the order was badly delayed and delay itself is a good ground for quashing the order of detention.

The Supreme Court was not impressed. Though there was a delay, it was not an undue delay to invite quashing of the detention order.

The Supreme Court observed, "COFEPOSA intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. Such persons by virtue of their large resources and influence cause delay in making of an order of detention. While dealing with the question of delay in making an order of detention, the court is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable."

We bring you this order today.

Please see Breaking News

He/She/? - The Third Gender

IN a landmark judgement delivered yesterday, the Supreme Court declared:

Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

As per Section 13(1) of the General Clauses Act, 1897,

In all Central Acts and Regulations, unless there is anything repugnant in the subject or context,--

(1) words importing the masculine gender shall be taken to include females;

Now it should be amended to include the 'third gender'. We don't know how many laws have to be amended.

As per Section 3(1)(f) of the Hindu Succession Act 1956,

(f) "heir" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act:

The Supreme Court started its judgement with these words:

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Tariff Value of Gold, Silver slightly increased; Oils decreased; even areca nuts increased

THE Government has marginally increased the Tariff value of Gold from 421 USD to 431 USD per 10 gms and that of Silver from 644 to 646 USD per kilogram with effect from 15.04.2014. Tariff values of other items are reduced except brass scrap which sees a raise. Tariff value of Areca Nuts is also hiked. The Tariff values as on 31.03.2014 and with effect from 15.04.2014 are as under:

FTP - Amendment in date of effect for implementation of Self-certification regarding compliance of bar-coding requirements on secondary and tertiary level packaging on export consignment of pharmaceuticals and drugs

IN Public Notice No. 56(RE-2013)/2009-14 dated 01.04.2014 it had been notified that with effect from 01.04.2014, export of pharmaceuticals and drug consignment would be permitted through a self-certification process.

Now DGFT has decided that the date of effect for implementation of Self-certification regarding compliance of bar-coding requirements on secondary and tertiary level packaging on export consignment of pharmaceuticals and drugs as mentioned at Para 3 of Public Notice No. 56(RE-2013)/2009-14 dated 01.04.2014 shall be 15th May, 2014.

However, DGFT has clarified that all those consignments which have been got cleared as per Public Notice No. 56(RE-2013)/2009-14 dated 01.04.2014 till date shall be treated as valid.

DGFT Public Notice No. 58 (RE-2013)/2009-2014, Dated: April 15, 2014

Strengthening of Staff in CBEC

CBEC has realised that there is tremendous increase in the work of CBEC, both technical and administrative with no commensurate increase in staff strength. Board has realised that staff strength in all sections/wings of the Board has to be increased. Board has asked all Sections to furnish their requirements of additional staff strength. This information is to be furnished by tomorrow and they asked for the information yesterday. Most of the Sections will not get this communication by tomorrow and then they do not have staff to put up this report! The Sections have to get the approval of their concerned Member for this report. This is another impossibility. It is very difficult to meet the concerned Member as all the Members are perennially busy - fighting among themselves, trying for foreign jaunts or looking for post retirement jobs.

CBEC Office Memorandum No.C-50/50/2013-Ad.II, Dated: April 15, 2014

CBEC wants a DS/Director (Anti Smuggling)

CBEC wants a Deputy Secretary/Director (Anti Smuggling) to be posted in the Revenue Headquarters.

Joint Commissioner/Additional Commissioner level officers are eligible. Board wants the applications latest by 02.05.2014.

CBEC Letter No.A.35017/26/2014-Ad.II, Dated: April 15, 2014

CBI is DDT

IT can happen only at a time when the politicians are busy with elections. The Central Bureau of Investigation- CBI was celebrating the concluding part of its 50th anniversary and in a rare gesture they invited Gopal Krishna Gandhi, grandson of Mahatma Gandhi and now the Chairman of the Indian Institute of Advanced Study. Whether the CBI Chief and other dignitaries were prepared for the acidic speech of Gandhi is not known, but he had them.

Excerpts:

The CBI has a very mixed image. Not all of it is flattering. It is seen as Government's hatchet, rather than honesty's ally. It is often called DDT - meaning not dichloro-diphenyl-trichloroethane, the colourless, tasteless, odourless insecticide it should be, but the Department of Dirty Tricks. This perception, however valid, needs to change.

The Director of the CBI, like an Army or Air Force or Navy Chief, should be totally independent professionally but not a loose cannon. (He) should be a phenomenal instrument, not a self-operating robot. He and his Bureau should be guardians of the law, never a law unto themselves.

There is justified criticism of CBI highhandedness and lack of sensitivity to loss of reputation of senior members of the bureaucracy against whom needless inquiries can get initiated... there is a temptation to bring down reputation of civil servants through unethical leaks to the media in real time during the course of the investigation. This is despicable.

At times the CBI is used as a tool to force civil servants to fall in line. No political party is a saint in this matter. But the CBI cannot afford to be complicit in this capriciousness. It must resist the unethical overtures.

At present, the CBI and the people of India are poles apart. The CBI is clothed in opacity, then ornamented by secrecy and finally perfumed by mystery, the triple wrappings of opacity, secrecy and mystery made it move to be taken out of the purview of the RTI Act. This is a great pity.

Public Peeing - Not even God could solve - What can a High Court do?

IT is now a practice among house owners in cities to fix tiles with images of Gods on exterior walls assuming that this will deter men from relieving there due to reverence for the Gods - but even this did not work and a frustrated victim had to file a writ in the Delhi High Court.

But what can a High Court do? It did what courts are best doping at. It passed an order - a very interesting order.

The Court's order said:

1. The writ petition raises an issue which this Court, if at all it can solve could do so in a clumsy way. The petitioner has filed photographs showing that residents of buildings and especially Group Housing Complex, fed up with the Indian habit of relieving the pressure on the bladder by unzipping and peeing on the first wall seen by the person is sought to be curtailed, if not at all prohibited, by affixing photographs deities on the walls. The hope would be that man, the greatest creation of the infinite artist, would not dare his privies in front of his lord and would not urinate on the road.

2. In spite thereof, the photographs evidence that the pressure on the bladder is blatantly relieved by virtually peeing on the photographs of once God.

3. Not only that the photographs at page 26 would reveal that to shame the offender the owners of the complex have written graffiti that "Look here a dog and a donkey is peeing". In spite thereof, a man is seen peeing on the wall.

4. Now, nobody can prevent a person from affixing photographs of deities on the walls of his house or on the walls of a Group Housing Complex. The direction sought to be issued against the residents that photographs of Gods be directed to be removed cannot be issued by us. The menace of urinating in public has to be solved elsewhere.

5. Surely this Court cannot makes a man walks out of his house his zipshould be locked. (sic)

Jurisprudentiol - Thursday's cases

Central Excise

Manufacture - Affixing labels and testing samples of imported lubricating oil additives - Not manufacture within scope and purview of Note 5 of Chapter 38 of CETA Schedule: HC

THE assessee is engaged in the manufacture of Lubricating Oil Additives and also importing additives and trading the same locally. The imported barrels are affixed with certain markings containing name and address and other details of the assessee and samples are tested and a test report is also enclosed with each consignment, which is sent to the customers. The assessee treated their activity as a trading activity and did not pay any duty of Excise for the clearances affected. The Department pursuant to certain investigation, issued three show cause notices for the period from March 1997 to January 1999, February 1999 to August 1999 and September 1999 to January 2000, alleging that the activity done by the assessee amounted to "manufacture" in terms of Note 5 to Chapter 38 of the Central Excise Tariff Act Schedule (CETA Schedule] and therefore excise duty should have been paid on the goods sold by them in India.

Income Tax

Whether assessee can claim deduction u/s 80HHC, ignoring deduction already claimed and allowed u/s 80IA - NO: HC

THE assessee claimed deduction of Rs.16.54 lakhs u/s 80IA and of Rs.52.75 lakhs u/s 80HHC, and declared NIL income. The AO held that with the introduction of subsection (9) of section 80IA, statute had barred double deductions. The amount of deduction claimed and allowed u/s 80IA had to be reduced from the profit of industrial undertaking for the purpose of allowing any other deduction for which the assessee was entitled to; in the present case u/s 80HHC. The CIT(A) confirmed the order of the AO in this respect. The Tribunal allowed the Assessee's Appeal.

The issue before the Bench is - Whether the assessee can claim deduction u/s 80HHC, ignoring the deduction already claimed and allowed u/s 80IA. And the verdict goes against the assessee.

Central Excise

Central Excise - Stay and Waiver of pre-deposit: CENVAT Credit on Capital Goods - There is absolutely no requirement that the capital goods at time of receipt must be owned by manufacturer or that the same would cease to be capital goods, if they are installed in factory and become fixed to earth: Demand to tune of Rs. 800 Crores Stayed: CESTAT

THE appellant are a Public Sector Undertaking, engaged in the manufacture and marketing of petroleum products. The dispute in this case is in respect of their refinery at Panipat where they manufacture various petroleum products falling under Chapter 27 and also goods covered by Chapter 39 of Central Excise Tariff, Act 1985. During period from July'07 to March'12 the appellant had taken Cenvat Credit of Rs.3,67,72,79,616/- in respect of various items of capital goods received by them for erection, installation and commissioning of Naphtha Cracker Plant.

Commissioner Central Excise, Rohtak confirmed the Cenvat Credit demand of Rs.367,14,65,992/- and 58,13,624/- against the appellant along with interest thereon under section 11AB and besides this, imposed penalty of Rs. 367,72,79,616/- on the appellant company under Rule 15(2) of the Cenvat Credit Rules, 2002 read with Section 11AC of Central Excise Act., 1944.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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