1. The department may consider constituting a Steering Committee for developing IS plans according to its business strategy in consonance with its future IS needs.
2. A personnel policy for development of internal competencies for management of the CBEC's IS management, by recruitment, development and training of IT personnel may be developed for smooth operations of the department's mission critical IS systems.
3. Any changes in the operational features of logical security elements like password policy may invariably be implemented only after due authorisation and documentation of the changes.
4. The department may consider examining its core application (ICES 1.5) audited periodically for detecting deficiencies and suggesting improvements in the application. The strategic control must necessarily be with the Government and accordingly, the SLAs may be urgently reviewed.
5. DoS may consider mapping the serial numbers of the RSP notification with the Tariff line items and put in place necessary validations in the application to ensure that the importer declares the RSP, if there are any imports under a tariff line item, covered under the RSP notification.
6. The department may consider the introduction of appropriate validations in ICES Application and RMS to detect the related cases. The facilitation accorded to ACP clients by RMS may also be re-examined, in view of the large volumes of goods cleared at RSPs declared below import cost.
7. To ensure correct assessment, validation checks for declaration of same CETH/CTH may be provided for in ICES 1.5 application, for all goods classifiable under chapters 1 to 98 of the Customs and corresponding Central Excise Tariff Schedules.
8. The proposed Export Obligation Discharge Certificate (EODC) message exchange between the DGFT and ICEGATE has not materialised. The manual transmission of EODCs and their monitoring has not been found to beefficient. However, the data available in the application database may be used to generate EODC discharge failure reports and the licencees as well as DGFT may be pursued, for timely initiation of the revenue recovery procedures related to the EODC.
9. The information regarding provisional assessments, action taken in cases of short levy of duty and duty paid through manual challans may be provided for in the application, to allow updation of the data relating to each of import/export assessment record.
| IS |
Information System |
| SLA |
Service Level Agreement |
| RSP |
Retail Sale Price |
| RMS |
Risk Management System
|
| ACP |
Accredited Client Programme |
| ICE GATE |
Indian Customs EDI Gate Way |
Will CBEC listen to CAG's wisdom?
Scrutiny of Returns is neglected area in Central excise - CAG
THE CAG in its latest report to Parliament on Central Excise observed that scrutiny of returns was a neglected area.
CBEC introduced self-assessment of Central Excise duties in 1996 and for Service Tax in 2001. With the introduction of self-assessment, the department also provided for a strong compliance verification mechanism through scrutiny of returns/ assessments, internal audit and anti-evasion. The crucial role of scrutiny of assessments as highlighted in the Report of the Task force on Indirect Taxes 2002 states "It is the view that assessment should be the primary function of the Central Excise Officers. Self-assessment on the part of the taxpayer is only a facility and cannot and must not be treated as a dilution of the statutory responsibility of the Central Excise Officers in ensuring correctness of duty payment. No doubt audit and anti-evasion have their roles to play, but assessment or confirmation of assessment should remain the primary responsibility of the Central Excise Officers".
CAG detected irregularities which could have been detected had the department conducted the scrutiny as per the prescribed procedures.
Internal Audit by Department - Not very vigilant - CAG
THE CAG observed, "One of the main compliance verification mechanisms in the department is the internal audit which carries out audit at assessee premises by following prescribed procedures including selection of assessee units based on risk parameters and scrutiny of records of the assessee to ascertain the level of compliance with the prescribed rules and regulations. Internal audit is empowered under Central Excise and Service Tax Rules, to access the records of the assessees at their registered premises. The Directorate General of Audit with its seven zonal units at Ahmedabad, Mumbai, Delhi, Bangalore, Kolkata, Chennai and Hyderabad is to provide a focal link between the Commissionerates (who actually run the audit process) and the Board on all audit-related matters. On the one hand, it aids and advises the Board in policy formulation and on the other, it guides and provides functional direction in planning, co-ordination, supervision and conduct of audits at the local level. Every Commissionerate has an Audit cell, manned by an Assistant/Deputy Commissioner and auditors and headed by an Additional/Joint Commissioner and this cell prepares, co-ordinates and monitors the audit plan. Internal audit parties consisting of Superintendents and Inspectors carry out this audit."
CAG attempted to check the efficiency of the selection process of assessees by internal audit cell of the department and actual audit done by the internal audit parties by verifying some assessee records already audited by the internal audit parties. And they found several issues not noticed by the Department's Audit.
Audit is the most lucrative section in the Department now and the consideration demanded for not raising audit points has shot up to lakhs of rupees. Assessees who have refused to budge to the high demands from Audit parties have found to their shock that it is much cheaper to pay off even lakhs to Audit parties than enter into litigation. The Audit can raise any objection on even issues settled long back. The Commissioners routinely approve these audit objections especially when huge evasion figures are shown. This results in a Show Cause Notice and the long process of litigation begins. You hire the best lawyers and plead before the learned Commissioner that the issue had already been decided in your favour by the Supreme Court. The Commissioner will come up with weird reasons for not following the Apex Court and one strong reason could be the assessee is different. He will demand duty for five years even if you were filing returns (which the officers were mandated to scrutinise and which they will not touch with a barge pole), impose an equal penalty and demand interest. He may also impose penalties on the officers of the Company. You have to make a pre-deposit for going in appeal. In the meantime even if your stay petition is pending, the Department will threaten you with attachment of goods and your bank accounts. Life will be made miserable and you will begin to realise that paying the auditor in the beginning of the story would have been the wisest decision. Sometimes wisdoms dawns a little late.
Demands for Grants and Appropriation Bill passed in Lok Sabha - Finance Bill for Today
THE Lok Sabha yesterday passed the Demands for grants pertaining to over 50 ministries including Agriculture, Civil Aviation, Commerce & industry, Defence, Finance, Home, HRD, Power, Space and shipping, running into lakhs of crores in less than 50 seconds without a debate. The House also passed the Appropriation (No.3) Bill 2014 in a few seconds.
The Finance (No.2)Bill 2014 is scheduled to be passed today.
Truth is defence in Contempt proceedings - A Commission headed by Judge is not Court - SC
CONTEMPT charges against Arun Shourie dropped after 24 years: In the issue of Indian Express of August 13, 1990, an editorial was published bearing the caption "If shame had survived". The editorial said inter alia:
"The legal opinion that the former Chief Justice of India, Mr. Y. V. Chandrachud, has given on the Kuldip Singh Commission's report is a stunning indictment. If there had been any sense of honour or shame, a Judge would never have done any of this. If there were any residual sense of honour or shame, the Judge having done any of it and having been found doing it, would have vacated his seat. But this is India of 1990, the Commissioner Kuldip Singh having perpetrated such perversities will continue to sit in judgment on the fortunes and reputations of countless citizens. He will continue to do so from nothing less than the Supreme Court of India itself.
Such is our condition. And so helpless are we that there is nothing we can do about such a "Judge". Save one thing. The only way to mitigate the injuries that such persons inflict on citizens is for all of us to thoroughly examine the indictments or certificates they hand out. Only that exercise will show up these indictments and certificates for the perversities which they are and only in that way can their effect be diluted. "Who has the time to read voluminous reports, to sift evidence?"
But if the issue is important enough for us to form an opinion on it, it is our duty to find the time to examine such reports, to examine as well the conduct of the commissioners who perpetrate them."
A contempt petition was filed in the Supreme Court in 1990 against Arun Shourie, the then editor of Indian Express.
The Supreme Court framed two questions for consideration:
(i) When a sitting Supreme Court Judge is appointed as a Commissioner by the Central Government under the 1952 Act, does he carry with him all the powers and jurisdiction of the Supreme Court? In other words, whether the functions which are discharged by the Supreme Court Judge as a Commissioner are purely statutory functions independent of the jurisdiction vested in the Supreme Court?
(ii) Whether truth can be pleaded as defence in contempt proceedings?
The Supreme Court decided the case yesterday.
The Court held:
1. A Commission appointed under the 1952 Act is in the nature of a statutory Commission and merely because a Commission of Inquiry is headed by a sitting Judge of the Supreme Court, it does not become an extended arm of this Court. The Commission constituted under the 1952 Act is a fact finding body to enable the appropriate Government to decide as to the course of action to be followed. Such Commission is not required to adjudicate upon the rights of the parties and has noadjudicatory functions. The Government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by the Commission is of a legal character and it has the power to administer oath will not clothe it with the status of Court. That being so, in our view, the Commission appointed under the 1952 Act is not a Court for the purposes of Contempt of Courts Act even though it is headed by a sitting Supreme Court Judge. Moreover, Section 10A of the 1952 Act leaves no matter of doubt that the High Court has been conferred with the power to take cognizance of the complaint in respect of the acts calculated to bring the Commission or any member thereof into disrepute. Section 10A provides the power of constructive contempt to the Commission by making a reference to the High Court with a right of appeal to this Court. Our answer to the first question is, therefore, in the negative.
2. Thus, the two Judge Bench has held that the amended section enables the Court to permit justification by truth as a valid defence in any contempt proceedings if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide. We approve the view of the two Judge Bench in R.K. Jain - 2010-TIOL-64-SC-CONTEMPT. Nothing further needs to be considered with regard to second question since the amendment in contempt law has effectively rendered this question redundant.
The Contempt petitions were dismissed.
Please see 2014-TIOL-66-SC-CONTEMPT-CB
Jurisprudentiol – Friday's cases
Service Tax
Appellant engaged in business of acquiring land suitable for setting up wind farm projects as designated by M/s SEL and providing such land on an exclusive basis to customer of M/s SEL - no Real Estate agent service can be said to have been provided by M/s SRL to M/s SEL - Appeal allowed: CESTAT
M/s. SEL, manufacturer of Wind Turbine Generators offers "total solutions" in wind power generation comprising of design, installation and operation and maintenance services, and identification, acquisition and provision of suitable land for wind farm projects to its customers. The appellant, M/s. SRL, an associate company of M/s. SEL, are primarily engaged in the business of acquiring land, suitable for wind farm projects, as identified by M/s. SEL and providing such land to the customers of M/s. SEL for setting up the wind farm projects.
The CCE, Pune-III in his O-in-O dt. 29.11.2006 held that M/s. SRL has provided Real Estate Agent Service and confirmed a Service Tax demand of Rs.3,07,83,184/- and imposed penalties galore. The amount of Rs.88.12 lakhs paid by the appellant during investigation was also appropriated.
Income Tax
Whether when assessee fails to explain huge increase in sundry creditors and unsecured loans, additions made by AO in this regard are legally sustainable - YES: HC
THE assessee filed its return for the Assessment Year 2000-01 declaring loss. The case of the assessee was picked up for scrutiny and a notice under Section 143(2) was dispatched by the Income Tax Authorities on 30.10.2001. The Assessing Officer, thereafter, sent further notices for the purposes of the scrutiny assessment. In response to the said notices, N, one of the then partners of the assessee firm, appeared before the Assessing Officer but showed his inability to produce any accounts or other details as sought by the Assessing Officer. He stated that there were certain disputes between the partners of the assessee firm and a suit had been instituted in this Court wherein a Local Commissioner had been appointed to inspect and sign the books of accounts relating to the businesses of the partners including the assessee firm. The books and other accounts were stated to be in the custody of the Local Commissioner appointed by the Court. The Assessing Officer passed an assessment order under Section 144 on best judgment basis.
The issues before the Bench is - Whether when assessee fails to explain huge increase in sundry creditors and unsecured loans, additions made by AO in this regard are legally sustainable. And the answer goes against the assessee.
NDPS
NDPS Act - Recall of Bail - One Bench can cancel bail granted by another
CAN the Bench cancel a bail already given by another Bench? The High Court observed,
"It is needless to say virtually the scope for cancellation sought is for recalling of the order passed by the Court based on the cardinal principle governed by the Latin maxim "Actus Curiae Neminem Gravabit", i.e. "An act of the Court not sanctioned by law shall prejudice no one". It is needless to say for such recall, the inherent power of the Court which inheres in every Court from its very constitution, subject to the saving and unless denied by way of statutory interdiction with all breadth and length is to the necessity, to apply to meet the ends of justice, including to undo a wrong or irregular thing as no Court can perpetrate an illegality or even an irregularity generally, when necessary facts brought to its notice.
See our Columns tomorrow for the judgements
Until tomorrow with more DDT
Have a nice day.
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