TIOL-DDT 2398
17.07.2014
Thursday

THE CBEC Chief Shanti Sundharam is reported to have remarked that she was not consulted on GST stating, "We did not even get the recent re-revised draft of the Constitutional Amendment Bill from the department of revenue."

These words were echoed in the Lok Sabha yesterday.

Participating in the budget discussions in the Lok Sabha yesterday, Bhartruhari Mahtab, the MP from Cuttack said,

"In the Budget, the Finance Minister has said about GST. Before taking up the amendment of the Constitution to introduce GST, this Government must plug several loopholes in the draft legislation. The trust deficit that existed between the Union Government and the State Governments must go. But I am surprised when the CBEC chief says very openly that she has not been consulted by the Finance Ministry on GST. GST aims to replace almost all the indirect taxes in the country with a single tax. It will replace Central Excise, Customs Duty and Service Tax, all that is administered by CBEC. How come its chief is not consulted? This was reported in the media on 14th. Has this been sorted out?"

Will the FM sort this out and answer the Hon'ble Member when he replies to the Budget Debate?

Service Tax - Usurious Interest only for Tax collected and not paid? - Does CBEC Chief really mean that?

IT is well known that in the recent Budget, the interest rate for delayed payment of Service Tax beyond one year has been hiked to 30 percent from the present 18 percent.

Business Standard has recently reported that the Chairperson of CBEC, Shanti Sundharam has stated that this high rate of interest is only for Service Tax collected and not paid.

This is what the paper reported:

But Madam Chairperson, this is not what the Notification says.

As per Section 75 of the Finance Act, 1994;

Every person, liable to pay the tax in accordance with the provisions of section 68 or rules made there under, who fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, shall pay simple interest at such rate not below ten per cent and not exceeding thirty-six per cent per annum as is for the time being fixed by the Central Government, by Notification in the Official Gazette for the period by which such crediting of the tax or any part thereof is delayed.

So, the rate of interest for delayed payment of Service Tax has to be notified by the Government. And the Government had by Notification No. 26/2004 dated 10.09.2004 as amended by Notification No. 14/2011 dated 01.03.2011 fixed the rate as 18 percent in exercise of the powers conferred by Section 75.

This notification was superseded by Notification No. 12/2014 dated 11.07.2014, which states, "the Central Government hereby, for the purpose of the said section, fixes the following rates of simple interest per annum for delayed payment of service tax, as given in table below: -

Table

This notification nowhere states that the 24 percent and 30 percent interest rates are for Service Tax collected and not paid.

In fact the assessees are afraid that they will have to pay 30 percent interest from 1st October 2014, even for the pending cases.

Suppose there is a demand for Service Tax for the period 1.4.2008 to 31.3.2009 and the assessee contests the demand. In 2018, CESTAT will give an order confirming the demand. For the period up to 30th September 2014, he has to pay interest at 18 percent and after that at 30 percent! Can any business survive with 30 percent interest and an equal penalty (payable after about ten years of alleged liability)? And you know the department can strike any time before five years with a huge unimaginable demand.

This type of laws gets enacted because the Government officers get their fat salaries regularly -uninterrupted and they have no clue as to how a business is run. Thank God - they could have made it 36 percent - they have the power to do that.

Tariff Value of Gold decreases but Silver increases

THE  Government has decreased the Tariff value of Gold from 428 USD to 425 USD per 10 gms. The tariff value of Silver has increased marginally from 688 to 690 USD per kilogram along with those of various oils with effect from 15.07.2014. Tariff value of Brass scrap has been also increased. However, the Tariff values of Poppy Seeds and Areca Nuts remain same. The Tariff values as on 30.06.2014 and with effect from 15.07.2014   are as under:  

Notification No.52/2014-Customs (NT), Dated: July15, 2014

How the Judicial System is clogged with irreverent litigation - Appalling Orders by Appellate Commissioners

MADAM Chairperson, your concern about not being consulted on GST is eminently justified, but do you know how your officers mock at the judicial system and cause immense loss to the Government as well as the trade?

Today I bring to your notice two appalling orders by two appellate Commissioners.

Discretion to condone the delay by appellate Commissioner is not the personal discretion of the Commissioner; it is the discretion of the law: An assessee filed an appeal with the Commissioner (A) with a delay of 29 days, but within condonable discretion of the Commissioner. Ground for delay was sickness of Proprietor's wife. Commissioner dismissed the appeal on the ground that no specific role of the proprietor's wife is observed in the day-to-day affairs of the firm and that nothing was brought on record to show that illness of the wife had affected the business of the appellant.

The assessee had to go in appeal to the CESTAT. The Tribunal observed, "this is an extremely arbitrary exercise of discretion. Condonation of delay particularly in the circumstances pleaded by the appellant should be liberally considered. It is perverse for the learned appellate Commissioner to hold that care of a spouse and the need for her attention is not a relevant criterion. The discretion to condone the delay authorised to the appellate Commissioner is not the personal discretion of the Commissioner; it is the discretion of the law and should be exercised appropriately as dictates of law require. The order is whimsical inviting invalidation and is accordingly set aside. The appeal is allowed. The matter is remanded to the learned Commissioner (Appeals)"

Now whose interests the Commissioner (Appeals) was catering to? What does he lose by condoning the delay? In any case he would have most probably dismissed the appeal. Because he has exercised his discretion arbitrarily, the assessee had to hire lawyers, go to the Tribunal and precious time of the Tribunal was wasted. Even a lot of time and money of the Department must have been wasted. Does this action in any way improve revenue collection?

Please see 2014-TIOL-1269-CESTAT-DEL

Appellate Commissioner granted 15 days time to Adjudicating Authority to re-adjudicate - Department appeals to CESTAT: In this case, the Hon'ble Commissioner (Appeals) remanded a case to the Adjudicating Authority - but granted 15 days time to the Adjudicating Authority to re-adjudicate the case.

The Department is in appeal with a Stay application as the adjudicating authority is not able to adjudicate the case within 15 days as he is pre-occupied with several adjudication assignments. The Tribunal orders that the embargo of 15 days imposed by ld. commissioner (Appeals) is lifted in this case and ld. Adjudicating Authority shall dispose the matter within three months from the receipt of this order issuing notice of hearing to the respondent.

The Learned Commissioner (Appeals) must have worked as an adjudicating authority before becoming Commissioner (Appeals) and he pretty well knows the difficulty in adjudicating the case within 15 days. Why should he fix a time limit of 15 days?

And the adjudicating authority could have also with a little effort passed the order within those 15 days instead of appealing to the Tribunal. The Commissioner (Appeals) passed his order in November 2013 and the Tribunal gave three months time in July 2014 - that means the case will be adjudicated one year after the learned Commissioner (Appeals) fixed a limit of 15 days!

Please see 2014-TIOL-1270-CESTAT-DEL

Revenue is too serious a matter to be entrusted to our Revenue Officers.

Budget 2014 - Help us to die of happiness

PARTICIPATING in the Budget discussion, Dr.Shashi Tharoor said,

Since the Finance Minister did not favour us with the usual couplets we have become used to in Budget speeches, I thought I would offer him a couple that are appropriate to this story. The first, with your permission, Mr. Chairman, is this.

"The promise was to illuminate every home. Not even a lamp lights up the city today."

But, we, on this side of the House, are not surprised, Mr. Chairman. After all, as the immortal Ghalib put it,

"I lived by your promise as I knew that it was false. Would not I have died of happiness, if I had believed it to be true?"

I hope that the NDA Government will help us to die of happiness, Mr. Chairman, rather than live in false hope.

Jurisprudentiol – Friday's cases

Service Tax

Attachment of Bank account - This appears to be one of modes of recovery of dues - Petitioner allowed to represent before Authority - Recovery stayed till passing of speaking order: HC

THE Petitioner challenges the notice of the Commissioner of Service Tax to the bank to recover an amount of Rs.28,56,464/- allegedly payable by the bank to the petitioner.

The issue for decision by the High Court is whether Section 87 of the Finance Act, 1994 empowers the revenue authority to issue impugned notice intending to recover the amount.

Income Tax

Whether, based on subsequent decision of Supreme Court which was not available at time of decision given by Tribunal, rectification application u/s 254(2) is maintainable - YES: HC

THE assessee is an individual. In the AY 1990-91, the Tribunal while allowing the appeal of the Revenue, had observed it was clear that whatsoever may be the mode of dissolution or closure of the business of the firm, the profits had to be ascertained only by taking the closing stock at market value. The accounts had to be worked out on that basis upto the date of dissolution or prior to it. The situation that the firm came to an end by way of liquidation or partners dissolved the firm for distributing the assets of the firm, or dissolved and closed the firm with a view to form a company or otherwise, were not relevant because the accounts of the outgoing entity, i.e., the firm, were to be prepared properly, may be the business remained the same and stock was also taken over by the new entity i.e., the company. For tax purposes, the profit and loss of the outgoing entity, i.e., the firm had to be properly and separately worked out and was not to be mixed up with the new entity, i.e., the company.

THE issues before the bench are - Whether, based on a subsequent decision of the Supreme Court which was not available at the time of decision given by the Tribunal, a rectification application u/s 254(2) is maintainable and Whether in the event of closure of a firm, stock of the said firm would be carry forward to the newly formed company, at cost only. And the verdict goes against the Revenue.

Central Excise

Appellant producing CA certificate showing inclusion of elements which department alleges was not included in AV - CCE has unnecessarily proceeded to adjudicate matter without verifying facts and expecting that this is Tribunal's job - CC directed to issue instructions so that frivolous litigation is avoided: CESTAT

DIFFERENTIAL duty of Rs.1.22 crores has been confirmed on the ground that the appellant has not included the cost of transportation and transit insurance charges and automobile cess in respect of ‘chassis fitted with engines' manufactured and supplied by M/s. Tata Motors, Jamshedpur for body building to the appellant. The body built vehicles were supplied to the depots of Tata Motors for sale and duty liability on the goods were discharged on the cost arrived on the basis of Ujagar Print's formula.

The Bench caustically observed -

Instead of doing the necessary verification, the adjudicating authority has unnecessarily proceeded to adjudicate the matter without verifying the facts and expecting that it is Tribunal's job to verify these facts and not that of the adjudicating authority. We strongly condemn this approach of the adjudicating authority.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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