TIOL-DDT 2480
21.11.2014
Friday

THE Telangana and AP High Court recently ruled that the CESTAT has no inherent power to order pre-deposit while remanding a case to meet the ends of justice.

In this case, the CESTAT remanded the case to the Commissioner, but directed the party to deposit an amount of Rs. 5 Crores. The Tribunal had observed, "even if the appeal has to be remanded it cannot be remanded without considering the balance of convenience and justice to the public at large and the Government. In our opinion, having retained the money for more than 5 years, the appellant should deposit at least amount which we have found prima facie payable with a small portion of the interest that is payable if the matter is remanded. Normally the matter should be remanded after noting compliance but to avoid further lapse of time, we consider that it would serve the interest of justice and public interest if the matter is sent back at this stage itself. Therefore the appellant is directed to deposit an amount of Rs. 5 crores within 12 weeks and report compliance before the Commissioner."

The assessee is in appeal before the High Court.

The High Court observed,

1. The Tribunal does not have any inherent power like Civil Court to pass appropriate order for the ends of justice.

2. The Tribunal is a creature of a Statute with specific powers mentioned in the Statute itself.

3. From the grounds of the appeal and the Statute, we do not find any provision for depositing Rs.5 crores for adjudication and the same is without jurisdiction.

4. In any event, logically question of deposit does not arise unless there is an adjudication to suffer with the liability of the appellant.

So, the High Court deleted the order of deposit of pre-deposit and directed the Commissioner to adjudicate the matter without any deposit.

Please see 2014-TIOL-2014-HC-AP-CX

NRIs - Acquisition/Transfer of Immovable property - Payment of Taxes - RBI clarifies

RBI observes that doubts persist in the members of public regarding requirement of payment of taxes while undertaking property transactions.

RBI clarifies that as per the Foreign Exchange Management (Acquisition and Transfer of immovable property in India) Regulations, 2000, transactions involving acquisition of immovable property under these regulations shall be subject to the applicable tax laws in India.

As per the Regulations:

A person resident outside India who is a citizen of India may -

a) acquire any immovable property in India other than agricultural/plantation/farm house, and

b) transfer any immovable property in India to a person resident in India.

c) transfer any immovable property other than agricultural or plantation property or farm house to a person resident outside India who is a citizen of India or to a person of Indian origin resident outside India.

A person of Indian origin resident outside India may -

(a) acquire any immovable property other than agricultural land/farm house/ plantation property in India by purchase, from out of (i) funds received in India by way of inward remittance from any place outside India or (ii) funds held in any non-resident account maintained in accordance with the provisions of the Act and the regulations made by the Reserve Bank under the Act;

(b) acquire any immovable property in India other than agricultural land / farm house / plantation property by way of gift from a person resident in India or from a person resident outside India who is a citizen of India or from a person of Indian origin resident outside India;

(c) acquire any immovable property in India by way of inheritance from a person resident outside India who had acquired such property in accordance with the provisions of the foreign exchange law in force at the time of acquisition by him or the provisions of these Regulations or from a person resident in India;

(d) transfer any immovable property in India other than agricultural land/farm house/plantation property, by way of sale to a person resident in India;

(e) transfer agricultural land/farm house/ plantation property in India, by way of gift or sale to a person resident in India who is a citizen of India;

(f) transfer residential or commercial property in India by way of gift to a person resident in India or to a person resident outside India who is a citizen of India or to a person of Indian Origin resident outside India.

RBI AP (DIR Series) Circular No. 38., Dated: November 20, 2014

Export of Goods/Software/Services - Period of Realisation and Repatriation of Export Proceeds - RBI Instructs

THE period of realization and repatriation to India of the amount representing the full export value of goods or software exported was six months. In 2011, RBI extended this period to twelve months. This relaxation was available up to September 30, 2012. In November 2012, RBI extended this relaxation till March 31, 2013. Thereafter this period was brought down from twelve months to nine months from the date of export, valid till September 30, 2013. However this period was retained at twelve months for Units located in SEZs, Status Holder Exporters, EOUs, Units in EHTPs, STPs & BTPs.

The Present: RBI directs that henceforth the period of realization and repatriation of export proceeds shall be nine months from the date of export for all exporters including Units in SEZs, Status Holder Exporters, EOUs, Units in EHTPs, STPs & BTPs until further notice.

RBI AP (DIR Series) Circular No. 37., Dated: November 20, 2014

Customs - New Exchange Rates from Today

CBEC has notified new exchange rates for Imported Goods and for Export Goods with effect from 21st November 2014. The US Dollar is 62.60 rupees for imports and 61.60 rupees for exports.

The Exchange rates were last notified on 5th November, 2014.

Notification No.111/2014-Cus (N.T.), Dated: November 20, 2014

FTP - Policy for issue of import licenses of Rough Marble

GOVERNMENT has notified the Import Policy of Rough Marble and Travertine blocks for the year 2014-15 with a quota of 8 lakh MT and a floor price of USD 325 per MT.

All licenses shall be subject to actual user condition. Licenses for Import of Marble and Travertine will have a validity up to 31 December 2015.

DGFT Notification No.99 (RE - 2013)/2009-2014., Dated: November 20, 2014

FTP - Modification of SION A-1475 and SIONs A-1839, A-1841 and A-1842.

DGFT has amended the description of the imported items for two SIONs. The existing and modified descriptions are:

DGFT Public Notice No.75 (RE - 2013)/2009-2014., Dated: November 20, 2014

Judicial Members of CESTAT Transferred

THE President has transferred six out of the ten Judicial Members of the CESTAT. Every Bench except Kolkata has a transfer. Technical Members are not transferred. Six of the ten Technical Members will retire in 2015 and three will retire in 2016, unless of course the retirement age is enhanced. There is a strong rumour (perhaps a wish) going around that retirement age for all Government employees will be enhanced to 62, for academics and judges to 65.

It is learnt that some new Members will be appointed in CESTAT soon.

CESTAT F.No.27(39)/Tranf. Policy/CESTAT/Admn-08 , Dated: November 19, 2014

SEZ Vizag needs a Development Commissioner

DoPT has invited recommendations from Chief Secretaries of States and Secretaries to the GOI, for the post of Development Commissioner, Visakhapatnam Special Economic Zone from among those officers who have been empanelled to hold Joint Secretary or equal posts at the Centre.

The DC, SEZ is a Commissioner rank post and has jurisdiction in the States of Telangana and Andhra Pradesh.

DoPT Letter No.10/14/2014-EO(SM-I)(Part I), Dated: November 20, 2014

Jurisprudentiol-Monday's cases

Central Excise

Penalty - If both lower authorities had applied their mind, matter would not have travelled so far - as duty & interest was paid before issue of SCN, penalty u/s 11AC is only 25% of duty: CESTAT

IN this case, the appellant paid the amount of central excise duty in dispute along with interest before issuance of the show-cause notice.

In spite of the above, the adjudicating authority as well as the lower appellate authority confirmed the penalty to the extent of 100% of the duty demanded.

The appellant is, therefore, before the CESTAT and submits that only a penalty of 25% of the duty ought to have been confirmed as per the provisions of s.11AC of the CEA, 1944.

When the AR was asked by the Bench to comment on the issue, he said the Tribunal may take its own view on the subject.

Income Tax

Whether when goods are loaded on ship and title with risk is passed on to assessee as per contract, assessee can claim deduction for loss if goods are not received - YES: HC

THE assessee is engaged in the business of trade in importing timber logs in bulk quantity. It had entered into contract with M/s Ply International, USA for import of teak logs of Tanzanian origin by shipment to be made in June and July 1994. The sale was on C & F basis where insurance was to be covered by the assessee and freight was to be paid by Ply International. The terms of the contract stipulated that once the goods were accepted on inspection, it would be considered as sold and held at the risk and responsibility of the assessee. The assessee for purpose of such contract had engaged the services of shipping vessel, M V Hazar through the charterer viz., M/s Ummall Quwain (UAE) and booked the consignment. The teak logs were inspected by the representatives of assessee at Tanga Port and a certificate was issued on behalf of the assessee stating the quality, quantity and measurement of teak logs.

The issues before the Bench are - Whether where the goods have been given in shipment and title of goods along with the risk has been passed on to the assessee in terms of a contract, the assessee will be said to be at loss if such goods are not received by him and Whether where the assessee has exhausted all the methods to recover the losses he incurred during previous year on account of loss of goods in transit and has not claimed deduction on those losses in the previous year, he cannot be denied from claiming deduction on the said losses in the subsequent year if such loss was not written off. And the verdict favours the assessee.

Customs

Notfn. 158/95-Cus - re-import - just because Commissioner has chosen to sit over appellant's request for extension and not take any decision, benefit of exemption cannot be denied - Appeal allowed: CESTAT

THE appellant had exported a consignment of alloy steel spanners. Some of the alloy steel spanners exported were returned by the foreign buyers for the purpose of repairs. The goods were re-imported. Duty free import of the goods for repair and re-export was claimed under Notification No.158/95-CUS which prescribes certain conditions.

The appellant furnished the required bond backed by the bank guarantee. Since the appellant could not complete repair/re-conditioning within period of six months from the date of re-import they submitted an application to the customs for extending the period of re-export by another six months but no decision was taken on their application for extension of period for re-export.

See our Columns Monday for the judgements

Until Monday with more DDT

Have a nice weekend.

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