TIOL-DDT 2512
07 01 2015
Wednesday

EXPORT without payment of duty is allowed under Rule 19 of the Central Excise Rules, subject to the conditions, safeguards and procedure set out in Notification No. 42/2001-Central Excise (N.T.). The first condition is that the exporter shall execute a bond and the manufacturer-exporter may furnish a letter of undertaking as specified in Annexure -II of the Notification.

As a Trade Facility, a Commissioner has recently issued a Circular prescribing a check list for bonds and Letter of Undertaking (LUT)

Check List of Letter of Undertaking: Letter of Undertaking for removal of excisable goods without payment of duty for export:

1. The Letter of Undertaking (LUT) to be executed on Rs. 100/- Non-judicial paper by the manufacturer exporter only. (What is a non-judicial paper? For that matter what is a judicial paper? Perhaps what he means is a non-judicial stamp paper. Where is it prescribed that the LUT should be on Rs. 100/- paper?)

2. Letter of undertaking to be submitted in the prescribed format i.e in Annexure-15 of CBEC Manual. (This LUT form is prescribed as Annexure-II of Notification No. 42/2001-CENT. In the CBEC Manual as published by the Board in their web site, Annexure 15 is Application for Refund of CENVAT Credit. Is it the same Annexure 15 that the Commissioner wants?)

3. All the documents shall be signed by the authorized signatory clearly mentioning the name of the person who executes Letter of Undertaking along with the name of the Company.

4. The details of exports made under previous LUT with proof of shipments is to be submitted in the prescribed format i.e. (in Annexure-63 of CBEC Manual) in respect of goods exported against earlier LUT. (This annexure 63 is another confusion. Actually there is no Annexure 63 in the CBEC Manual. The last annexure in the Manual is 51. Where did this 63 come from? Please see DDT 2182 - 04.09.2013 - ‘ANNEXURE 63' not typed on the Centre of the page - LUT rejected. And why do you need particulars of all previous exports? Pray what are you going to do with this mountain of papers - just to receive a copy of the LUT renewal?)

5. Copy of Central Excise Registration Certificate to be enclosed. (What are you going to do with this? He is after all your registered assessee; you can verify his credentials online. Why waste paper?)

6. Copy of VAT Registration (TNN No./CST No.) to be enclosed. (Same; why waste paper?)

7. Copy of identity proofs of authorized signatory (Self Attested)

8. Copy of the Board's resolution designating the Authorised signatory to sign on the relevant documents. (Some Assistant Commissioners are insisting on notarising the LUT)

You call this facilitation. Just imagine what enforcement will be. More Governance Modiji?

Hyderabad IV Commissionerate Trade Facility No. 02/2014, Dated: December 22, 2014

Appeal to CESTAT - Mandatory Pre-deposit - CBEC Instructions

EFFECTIVE from 6.8.2014, not after:. CBEC in Circular No 984/08/2014-CX dated 16th September, 2014 had clarified that amended provisions apply to appeals filed after 6th August, 2014. Sections 35F of the Central Excise Act, 1944 and Section 129E of the Customs Act, 1962 contain specific saving clause to state that all pending appeals/stay applications filed till the enactment of the Finance Bill shall be governed by the erstwhile provisions.

Now, CBEC clarifies that An Act of Parliament comes in to effect on the date it received the assent of the President of India. Hence, the amended provisions regarding filing of appeal along with stipulated percentage of pre-deposit shall apply to all appeals filed on or after 6th August, 2014.

Record of Pre-deposit to be made by Commissioners: Para 7.2 of the Circular stipulated that Commissioners should maintain record of deposits made under Section 35F of the Central Excise Act, 1944 or section 129E of the Customs Act, 1962 so as to facilitate seamless verification of the deposits at the time of processing the refund claims made in case of favourable order from the Appellate Authority . In order to maintain uniformity in the database being maintained, CBEC has suggested a model register.

Pre-deposit in cases of demand of erroneous drawback granted: Board has received several representations stating that some Commissioners (Appeals) have been insisting on pre-deposit in cases of demand of erroneous drawback granted. It has been represented that drawback is not a duty and hence the amended provisions would not apply to such cases. Board clarifies: Drawback, like rebate in Central Excise, is refund of duty suffered on the export goods. Section 129E stipulates that appellant filing appeal before the Commissioner (Appeals) shall pay 7.5% of the duty demanded where duty and penalty are in dispute. Accordingly, it is clarified that mandatory pre-deposit would be payable in cases of demand of drawback as the new section 129E would apply to such cases.

No pre-deposit for appeal to Joint Secretary (Revision Authority): Board clarifies: The ambit of the Section 129E of the Customs Act, 1962 in the legislation does not extend to appeals under section 129DD before Joint Secretary (Revision Application). Therefore, while mandatory pre-deposit would be required to be paid in cases of drawback, rebate and baggage at the first stage appeal before Commissioner (Appeals), no pre-deposit would be payable in such cases while filing appeal before the JS(RA).

CBEC Circular No. 993/17/2014-CX., Dated: January 05, 2015

Good Governance at Work - Wednesdays are ‘Public Meeting Days' in Income Tax Department

AS a part of Prime Minister's 'Good Governance Day' promise to provide an "open and accountable administration" CBDT has decided that all field offices of the Income Tax Department will observe 'Public Meeting Day' during 10.00 AM to 1.00 PM every Wednesday to listen to and try to resolve the grievances of the members of the public.

Heads of local income tax offices will not fix any official meeting on Wednesdays during the hours prescribed for interaction with the public and will ensure that their staff including staff at the reception and security personnel, are suitably instructed to allow the members of the public to meet the officers without prior appointment.

This is with effect from 7 January, 2015 - today!

A suitable feedback mechanism is to be put in place by each cadre controlling Principal Chief Commissioner / Director General of Income Tax for offices under his control to record the number of grievances attended to and solved on every 'public meeting day', and to identify the deficiencies with a view to suggesting systemic changes required to avoid recurrence of delays in redressal of grievances.

A report in this regard shall henceforth also be incorporated in their Monthly DO letters submitted to the Zonal Members concerned.

Board expects that the above instructions will be adhered to without fail.

Most probably CBEC will soon follow suit.

CBDT Office Memorandum in F.NO.DIR(HQRS.)/CH.(DT)/29/2013., Dated: January 06, 2015

CBDT - Request for Exchange of Information from field offices of time barring assessment cases

IT seems a large number of requests for Exchange of Information (EOI) in time barring assessments/ matters are received in FT&TR. Division of the Board just before the time barring date.

It becomes difficult to process and forward such requests after due scrutiny to the Foreign Competent Authority in time. Further, in many cases the EOI requests are not properly drafted/prepared and modification of these requests by the field officers is r equired.

So, CBDT requests the Principal Chief Commissioners to direct officers/ CsIT concerned to send all requests for exchange of information getting time barred on 31.03.2015 to FT&TR Division latest by 15th of February 2015. References beyond this date may be sent only in unavoidable circumstances.

CBDT F.No.500/56/2014-FT&TR-IV., Dated: January 06, 2015

FTP - Online IEC applications: Postponement of date of operationalisation of Public Notice No. 76

DIRECTOR General of Foreign Trade has postponed the date of operationalisation of the Public Notice No. 76 (RE-2013) /2009-2014 dated 27th of November, 2014 vide which amendments in ANF2A of Handbook of Procedure Vol. I (Appendices and Aayat Niryat Forms), 2009-2014 were made.

Vide the Public Notice No. 76 (RE-2013), IEC applications were mandated to be submitted online with effect from 01.01.2015. However, due to some unforeseen technical problems it has not been possible to operationalise the new online I EC system. Therefore, till such time the new online system is operationalised and made effective, from a new date to be notified subsequently, applicants seeking to obtain IEC may fill the Application Form and submit requisite documents and fees (Rs.250/) to the concerned jurisdictional RAs as per the procedure, as existing prior to 01/01/2015.

DGFT Public Notice No. 80 (RE-2013)/2009-2014, Dated: January 06, 2015

Respect the Privacy of taxpayer - CBDT to Staff

INSTANCES have come to the notice of the Board where information pertaining to individual taxpayers has been published in the print media with specific reference to departmental sources. In some cases, even details contained in departmental documents seem to have been shared with the representati ves of media.

CBDT draws the attention of all its officers to the provisions of section 138 of the Income tax Act read with notifications issued under that section, which obligates that no public servant shall produce before any person or authority any such document or record or any information or computerised data or part thereof as comes into his or her possession during the discharge of official duties unless specifically authorised to do so in accordance with the notifications issued under section 138 from time to time.

Board also cautions that as per the provisions contained in section 280 of the Income Tax Act, if a public servant furnishes any information or produces any record in contravention of the provisions of section 138(2) of the Income Tax Act , he or she will be punishable with imprisonment which may extend up to six months and shall also be liable to fine.

Board emphasises; Privacy of taxpayer must be respected as the information respecting an assessee is held in fiduciary capacity and maintaining its confidentiality is a statutory obligation of the Department.

Board warns that any breach of the aforesaid statutory obligation will be viewed seriously by the Board and necessary action will be initiated.

All supervisory authorities must sensitise their subordinates about the statutory position and ensure that the Board's directions are complied with both in letter and spirit.

CBDT Office Memorandum in F. No. Dir. (Hqrs.)Ch. (DT)/29/2014., Dated: January 1, 2015

Pending Cases in ITAT crosses 100,000 mark!

DDT 2366 03.06.2014 observed, "OUR CESTAT has also achieved a not so rare distinction in Indian Judicial history. The number of pending cases in the beginning of this financial year has crossed the unmanageable level of 100,000 - yes ONE LAKH cases."

Our COB( WEB) - 399 JUNE 05, 2014 noted, "yesterday, I was told that the pendency in the ITAT has exceeded 91,000 as on May 1, 2014, and at the present growth rate it would soon leave behind the CESTAT in its 'unhealthy' competition!"

And Wow! ITAT has achieved this distinction.

As on 1.1.2015, there are 100,574 cases pending in the various Benches of ITAT.

Welcome to the one Lakh Club.

Interestingly our CESTAT has gone out of the one lakh club! As on 1.12.2014, there are only 96,039 cases pending in CESTAT. These are of course regular matters; if Stay applications are also taken into consideration, the CESTAT is very well entitled to be in the club.

Assuming that the total tax involved in all these 2 lakh cases is around, one lakh crore rupees; the success rate of the Government is about 20 percent which means if all these cases are decided, the Government will get Rs. 20,000 crores.

If the Government imposes a litigation cess of 1% on all the taxes, they will get about Rs. 15,000 Crores. Do it for two years and you get 30,000 crores. Then you can happily close down the Tribunals and start afresh. May be even for the pending cases you can collect 1% of the disputed amount and close all these cases.

Litigation Industry thrives!

Jurisprudentiol-Thursday's cases

Central Excise

Maintainability of Writ - Error apparent on face of record - Order passed by authority orders relying on previous orders which were stayed / reversed - Order passed on account of sheer non-application of mind and based on irrelevant consideration - Order quashed and matter remanded back to authority: HC

THE impugned order has been passed by relying on two earlier decisions passed against the same assessee on the same issue - One of the orders has been stayed by the CESTAT and the other order has been reversed by the Commissioner (Appeals) - Impugned order has been passed on account of sheer non application of mind and based on irrelevant consideration, without reference to the orders passed by the superior authorities viz. the order passed by the Commissioner (Appeals) as well as the CESTAT - Impugned order is quashed and matter remanded.

Income Tax

Whether sums agreed to be paid to retiring partners on account of their capital as outstanding in firms' books of account can be considered as goodwill and therefore, there is no question of denying depreciation on it - YES: ITAT

THE assessee, a partnership firm, is engaged in the business of supply of equipments for shooting and editing telefilms with computerized digital graphics on hire. Two of its partners, holding 20% share each in the profits (or losses) of the firm, retired there-from during the financial year and were paid their share of 'goodwill'. Assessee claimed depreciation on goodwill, as an intangible asset of the firm. AO disallowed the claimed stating that 'Goodwill', it was the constant refrain, was not an intangible asset within the meaning of Explanation 3(b) to section 32(1)(ii).

THE issue before the Bench is - Whether the sums agreed to be paid to the retiring partners on account of their capital as outstanding in the firms' books of account can be considered as goodwill and therefore, there is no question of denying depreciation on it. And the answer is YES.

Service Tax

Very nomenclature of service 'management consultancy' indicates that it has nothing to do with provisions of facilities such as water, effluent treatment, etc. expenditure of which is reimbursed to appellant - appellant is not rendering any advice or consultancy - Demand set aside and appeal allowed: CESTAT

M/s. Century Enka Ltd. entered into an Agreement with M/s. Centak Chemicals Ltd. for the period April 1999 to March 2004 for providing General support services, Operational services, Personnel services and Secretarial services to the latter. From 1st April, 2004, on the expiry of the first agreement, they entered into two separate agreements for operational facilities and personnel facilities to be provided to M/s. Centak Chemical Ltd.

The case of Revenue is that all these services fall within the scope of Management Consultancy service and, therefore, the appellant is liable to pay service tax on the amounts received from M/s. Centak Chemicals Ltd.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.