Appeal to CESTAT - Pre-deposit mandatory even for appeals against orders issued prior to 06.08.2014 - CESTAT
17.10.2014
Friday
THE CESTAT in a Circular has clarified certain issues regarding pre-deposit.
The Finance Act 2014 amended provisions of the three statutes namely Customs Act 1962, Central Excise Act, 1944 and Finance Act 1994, by which the mandatory deposit of 7.5%/10%, as the case may be, has to be made for filing an appeal before the CESTAT.
The above provisions came into force with effect from 06.08.2014.
However, some of the appellants/consultants/Counsels while presenting appeals are expressing reluctance in complying with the condition of mandatory deposit stipulated under the Act as amended. Some of them have contended that as the Show Cause Notice was issued and demand confirmed prior to 06.08.2014, the amended provisions are not applicable to their case.
Some of them have relied upon judgments of various judicial forums to claim exemption from the mandatory deposit while filing appeal.
Tribunal clarifies that no such exemption has been contemplated either in the amended provision of the Act statutes, or even in the clarificatory circular [984/08/2014-CX., Dated: September 16, 2014] issued by the CBEC on the subject.
In view of above, Registrar, CESTAT has directed the DRs/ ARs/TOs of all Benches that if no evidence in support of mandatory deposit is produced while filing appeal, such appeals, after providing three opportunities/reminders, be numbered and listed on Fridays before the Court presided by the Senior Member for appropriate orders.
The Tribunal has extracted Section 35F of the Central Excise Act as presented in the Finance Bill 2014, but not as contained in the Finance Act 2014. The mention in serial (iii) below of a clause (b0 is apparently a typographical error in the CESTAT Circular.)
| As extracted by the CESTAT Registrar |
The Statute as it stands today |
| The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal |
|
| i) under sub-section (1) of section 35, unless the appellant has deposited seven and half per cent of the duty demanded or penalty imposed or both , in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise; |
(i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise; |
| ii) against the decision or order referred to in clause (a) of sub- section (1) of section 35B, unless the appellant has deposited seven and a half percent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against; |
(ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; |
| iii) against the decision or order referred to in clause (bO of Sub- section (1) of section 35B, unless the appellant has deposited ten percent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against: |
(iii) against the decision or order referred to in clause (b) of sub-section (1) of section 35B, unless the appellant has deposited ten per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: |
So, now this is a dispute before the CESTAT, which can go in further appeals.
CESTAT Circular F.No. 15/CESTAT/General/2013-2014, Dated: October 14 2014
IT - TDS on interest on deposits ordered by courts in accident claims - High Court quashes CBDT Circular
SECTION 194A of Income Tax Act, 1961 stipulates deduction of tax at source (TDS) on interest other than interest on securities. Board had received references expressing difficulties in implementation of provisions of Section 194A of the Act in a situation where in the course of the proceedings before Supreme Court/ High Court/ any other court or tribunal, one or more than one litigant is directed by the court that a specified amount be deposited in the bank either directly or through the court in order to protect the interest of litigants.
CBDT in Circular No. 8/2011, dated 14.10.2011 clarified that Banks should deduct tax at source on the interest accruing on the above deposit(s).
In a suomotu PIL case, the Himachal Pradesh High Court day before yesterday quashed the CBDT Circular.
The High Court held that the Circular was not in tune with the mandate of Sections 2(42) and 2(31), read with Section 6 of the Income Tax Act, 1961. The said circular also is not in accordance with the mandate of Section 194A of the Act.
The Court held that accident claim cases and the compensation awarded under the Motor Vehicles Act cannot be said to be taxable income. The compensation is awarded in lieu of death of a person or bodily injury suffered in a vehicular accident, which is damage and not income.
We bring you this judgement today.
Please see 2014-TIOL-1815-HC-HP-IT
Tariff Value of Gold increased - Silver Stable
THE Government has marginally increased the Tariff value of Gold from 396 USD to 401 USD per 10 gms. The tariff value of Silver remains unchanged at 575 USD per kilogram. Tariff value of Brass scrap has been decreased. However, the Tariff value of Poppy Seeds and areca nuts are increased. The Tariff values as on 30.09.2014 and with effect from 15.10.2014 are as under:
|
Table 1
|
|
S. No.
|
Chapter/ heading/ sub-heading/tariff item
|
Description of goods
|
Tariff value USD (Per Metric Tonne)
from 30.09.2014
|
Tariff value USD (Per Metric Tonne)
from 15.10.2014
|
|
(1)
|
(2)
|
(3)
|
(5)
|
(6)
|
| 1 |
1511 10 00 |
Crude Palm Oil |
725
|
725
|
| 2 |
1511 90 10 |
RBD Palm Oil |
750
|
750
|
| 3 |
1511 90 90 |
Others - Palm Oil |
738
|
738
|
| 4 |
1511 10 00 |
Crude Palmolein |
762
|
755
|
| 5 |
1511 90 20 |
RBDPalmolein |
765
|
758
|
| 6 |
1511 90 90 |
Others -Palmolein |
764
|
757
|
| 7 |
1507 10 00 |
Crude Soyabean Oil |
838
|
852
|
| 8 |
7404 00 22 |
Brass Scrap (all grades) |
3987
|
3953
|
| 9 |
1207 91 00 |
Poppy seeds |
3429
|
3641
|
|
Table 2
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|
S. No.
|
Chapter/ heading/ sub-heading/tariff item
|
Description of goods
|
Tariff value USD
from 30.09.2014
|
Tariff value USD
from 15.10.2014
|
| |
|
|
|
|
| 1 |
71 or 98 |
Gold, in any form in respect of which the benefit of entries at serial number 321 and 323 of the Notification No. 12/2012-Customs dated 17.03.2012 is availed. |
396 per 10 grams
|
401 per 10 grams
|
| 2 |
71 or 98 |
Silver, in any form in respect of which the benefit of entries at serial number 322 and 324 of the Notification No. 12/2012-Customs dated 17.03.2012 is availed. |
575 per kilogram
|
575 per kilogram
|
|
Table 3
|
|
S. No.
|
Chapter/ heading/ sub-heading/tariff item
|
Description of goods
|
Tariff value USD (Per Metric Tons)
from 30.09.2014
|
Tariff value USD (Per Metric Tons)
from 15.10.2014
|
| 1 |
080280 |
Areca nuts |
2017 |
2239
|
Notification No. 97/2014-Cus.(N.T.), Dated: October 15, 2014
CE - Export Warehousing Station - Bhuj
WAREHOUSING provisions have been extended to all excisable goods specified in the First Schedule to the Central Excise Tariff Act, 1985 intended for storage in a warehouse registered at such places as may be specified by the Board and export therefrom. Board Circular No. 581/18/2001-CX dated 29th June, 2001 specifies conditions, procedures, class of exporters and places under sub-rule (2) of rule 20 of Central Excise Rules, 2002 for warehousing of excisable goods for the purpose of export. In paragraph 2(2) of the said Circular, the Board has specified places where warehouses may be established.
The warehouses may be established and registered in Ahmedabad, Bangalore, Kolkata, Chennai, Delhi, Hyderabad, Jaipur, Kanpur, Ludhiana, Mumbai, the districts of Pune and Raigad in the state of Maharashtra, the district of East Midnapore in the state of West Bengal, the district of Kancheepuram in the state of Tamilnadu, the district of Indore in the state of Madhya Pradesh, the taluka Ankleshwar in the district of Bharuch in the state of Gujarat, Navi Mumbai in the district of Thane in the state of Maharashtra, Sholinghur in the district of Vellore in the state of Tamilnadu, Bidadi in the Bangalore Rural District, Karnataka and the district of Thiruvallur in the state of Tamilnadu, the district of Gautam Budh Nagar in the state of Uttar Pradesh, the district of Nagpur in the state of Maharashtra, Tehsil of Tijara of Alwar district in the state of Rajasthan.
CBEC has now specified Bhuj Taluka of Kutch District in the state of Gujarat also as a place where warehouses may be established to store excisable goods for export.
CBEC Circular No. 987/11/2014-CX., Dated: October 15, 2014
Customs - New Exchange Rates from Today
CBEC has notified new exchange rates for Imported Goods and for Export Goods with effect from 17 October 2014. The US Dollar is 62.05 rupees for imports and 61.05 rupees for exports.
The Exchange rates were last notified on 1st October 2014.
Notification No. 98/2014-Cus., (N.T.), Dated: October 16, 2014
Jurisprudentiol – Monday's cases
Central Excise
CE - Supplier delaying payment of duty on capital goods - interest u/s 11AB of CEA, 1944 for period from date of availment of credit to date of payment of duty is on supplier manufacturer and not on respondent: CESTAT
IN the month of June, 2000, the respondent received capital goods (dies and gauges) from M/s Fiat India Ltd., Kurla under two invoices, both dated 1.6.2000, involving the total duty of Rs.45,76,685/-. As per the CCR, the respondent took CENVAT Credit of 50% of the duty i.e. Rs.22,88,343/- on 3.6.2000 and took the balance credit of 50% on 1.4.2001 i.e. next financial year. Later, it came to the notice of the Revenue that the supplier M/s Fiat India Ltd. had deposited only 50% of the duty on 15.6.2000 i.e. on the due date, and had deposited the balance 50% of the duty after a considerable delay on 24.1.2002.
Proceedings were initiated against the respondent and when the adjudicating authority concluded that they were liable to pay the interest on the amount of CENVAT Credit availed during the period 1.4.2001 to 24.1.2002.
Income Tax
Whether if assessee faces financial hardships and gets no support from its CA and has no staff, it constitutes reasonable cause for purpose of penalty u/s 272A(2) - YES: ITAT
THE assessee company is a producer of feature films. The TDS section of the department conducted a survey operation u/s 133A of the Act at the business premises of the assessee. At the time of survey, it was noticed that the assessee company did not file its return of income. The TDS officials did not find any audited books of account also. Further, it was noticed that the assessee did not pay the tax deducted by it at source. The TDS officials intimated these details to the assessing officer and accordingly the assessing officer re-opened the assessments relating to the assessment years 2003-04, 2004-05 and 2005-06. During the course of assessment proceedings, the AO recorded a statement of the director of the assessee company, wherein he disclosed certain details about the income and expenditure. He also admitted that the assessee company did not file Form No.52A as required under Rule 9(a) of the I.T Rules. Thereafter, a person appeared before the assessing officer and filed copies of Balance Sheet and Profit and Loss account.
THE issue before the Bench is - Whether if assessee faces financial hardships and gets no support from its CA and has no staff, it constitutes reasonable cause for purpose of penalty u/s 272A(2). YES is the Tribunal's answer.
Service Tax
CENVAT Credit on inputs with respect to services used in construction of immovable property which is subject to service tax under renting of immovable property eligible: CESTAT
THE issue involved in these proceedings is whether CENVAT credit of capital goods, input and input services used for making of immovable property, which is further put to renting of immovable property service, will be admissible or not. Adjudicating authority under different Orders-in-Original held that such credit will be admissible as the inputs, capital goods and input services are availed in or in relation to creation of a property which is used for providing of output services i.e. renting of immovable properties.
Held: so far as admissibility of CENVAT credit on inputs and input services used for creation of immovable property, which is subsequently subject to service tax under renting of immovable property, is concerned, the issue is no more res-integra as held by the bench in the case of Navratna S.G. Highway Prop. Pvt Limited.
See our Columns Monday for the judgements
Until Monday with more DDT
Have a nice weekend.
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