TIOL-DDT 2521
20 01 2015
Tuesday

AT present, Importer/Customs House Broker (CHB) submits a sealed cover in Import Noting Section, which is opened by ACAO. The documents forwarded by SEZ include the fifth copy of assessed B/E, which is treated as permission for TP of the cargo to the concerned SEZ, and the same is processed by Import Noting Section.

It seems that the procedure of granting permission to trans-shipment (TP) of cargo from Gateway port to Specified Export Zone (SEZ), on the basis of the fifth copy of assessed bill of entry (B/E), is being misused by unscrupulous persons.

So, the Commissioner has directed that the Import Noting Section should take the following precautions:

1. Import Noting Section should ensure that the cover/seal is not tampered with and the same should be opened by ACAO before the person presenting the cover. The ACAO should ensure that the cover contains the following documents.

a. Forwarding/covering letter from "authorised officer" of the concerned SEZ. TA/STA should verify if the unit is listed in the SEZ's list maintained in the section.

b. Letter from the Unit intimating name of the CHB appointed by them for carrying out TP-SEZ procedure at JNCH along with phone no.

c. TA/STA/ACAO should verify CHB's name from ‘list of suspended / blacklisted CHB obtained from CHA Section/NCH, Mumbai.

d. Letter from CHB mentioning name of their employee who has been nominated for carrying out the work with his Kardex no.

e. TA/STA/ACAO will verify Customs pass of the CHB's representative.

2. TA/STA/ACAO should ensure that the fifth copy of assessed B/E having signature and rubber stamp of ‘authorised officer', attested invoice/packing list/bill of lading and other necessary documents are presented before them.

3. TA/STA should ensure that all details in the TP-SEZ forms are duly filled in and no column is left blank.

4. TA will verify alert in the system and/or in a database maintained in the Section and accordingly will put up the note sheet to ACAO.

5. ACAO will cross check the note / details put up by TA and will sign the note.

6. Superintendent should verify IGM No./line no. in the EDI system for Importers name and Address, No. of Pkgs, Gross Weight, Description of goods, BL No./date, Type of Cargo, Container no. and Seal no., etc. Superintendent should ensure "destination code" of the SEZ for which TP is sought.

7. He/she should verify signature of the authorised officer from specimen signatures of "authorised officer". Having satisfied he/she will sign the note and forward to AC for approval.

8. AC/DC will approve the same if nothing contradictory is put up before him/her.

The Commissioner has further directed that an official email ID of Import Noting Section may be created. Similarly, official email IDs of ‘authorized officers' from SEZs may be obtained. Veracity of SEZ-TP may be verified via email, phone call.

Let us hope that the consignment is not held up for all these precautions.

Jawaharlal Nehru Custom House Standing Order No.03/2015., Dated: January 19 2015

Swiss Pranks - CBEC caught unawares - Government hikes Exchange Rates

THE exchange rates notified by the CBEC for Swiss Francs for import in December and January are like this:

When the CBEC reduced the rate by three rupees last Friday, a turbulent turmoil was shaking the financial markets of the world the previous day.

The Swiss Franc is considered to be one of the safest investments in the world (after all they have all the black money there). The Swiss National Bank (SNB) on Thursday (14th January 2015) scrapped its policy of limiting the rise of the currency. And the Swiss Franc went through the roof, sending shock waves across the global financial capitals. A Franc which was 60.97 rupees on 14th January became 72.65 on the 15th - a 20% change on a single day. Of course it has stabilised there for the last five days. Currencies don't move this way and holders of Swiss Francs found themselves richer by 20% in a single day and several brokerage firms across Europe went broke.

Our Central Board of Excise and Customs (CBEC) was blissfully unaware of the economic turmoil that was shaking economies, when they announced the exchange rate of Franc as 61.40 on 16.1.2015, when it was being traded at nearly 73 rupees.

Fortunately the Board got scent of this news yesterday and they revised the Exchange rates of the Swiss Franc as: Rs. 72.15 for imported goods and Rs. 70.35 for Export Goods. And these rates are effective from today.

Francly, are our Revenue officers capable of being in touch with the money markets of the world? It took them five days to realise the effect of the Swiss Franc.

Notification No. 11/2015-Customs(NT)., Dated: January 19, 2015

Company Law - Notice of address at which books of account are to be maintained

GOVERNMENT has amended the Companies (Accounts) Rules, 2014, to insert a new Rule 2A, which reads as:

"2A. Notice of address at which books of account are to be maintained.- For the purposes of the first proviso to sub-section (1) of section 128, the notice regarding address at which books of account may be kept shall be in Form AOC-5"

A new proviso is inserted as:

"Provided also that nothing in this rule shall apply in respect of consolidation of financial statement by a company having subsidiary or subsidiaries incorporated outside India only for the financial year commencing on or after 1st April, 2014."

A new form, Form AOC-5 for the purpose has also been notified.

Ministry of Corporate Affairs Notification., Dated: January 16, 2015

While C.A. without bothering to verify anything has certified that entire amount has been paid, departmental officers have gone to other extreme

IN a case before the CESTAT recently, the Bench found that the certificate given by the C.A was wrong. So was the certificate given by the Superintendent. The Tribunal observed, we have to express our unhappiness that none of the Authorities at higher level have thought it fit to have a look at the verification report given by the Superintendent.

While, the C.A. without bothering to verify anything has certified that the entire amount has been paid, the departmental officers also have gone to the other extreme. Since the C.A. certified statement submitted on Page 40 of Memo of appeal by the appellant has been found to be wrong on facts, the appellants should submit another statement ."

The Tribunal directed the Assistant Commissioner to get another report prepared, verify the report himself, certify to that effect and submit as to the correct amount payable.

Maybe it is too much for the Tribunal to expect that the learned Assistant Commissioner would bother to verify a report submitted by his Superintendent.

Please see 2015-TIOL-150-CESTAT-BANG

As payment of excise duty is directly linked with manufacturing of goods, refund of excise duty has to be treated as income derived from eligible business - ITAT

IS the refund of excise duty to be treated as profits and gains of business or profession carried on by assessee? This was the question before the ITAT in a recent case. If it is treated as so, it is eligible for deduction under Section 80 IB of the Income Tax Act.

The AO denied 80IB deduction on excise duty refund for the sole reason that it cannot be treated as income derived from eligible business of the undertaking. The CIT allowed the deduction on the ground that Excise Duty refund is directly related to manufacture of goods; so is the refund.

The Department took the matter to the ITAT.

The Tribunal observed,

The assessee has paid the excise duty on the goods manufactured and sold and as such it forms part of the sale price of assessee. Therefore, payment of central excise duty is integrally connected with the manufacturing and sale of goods produced by assessee. Therefore, in sum and substance, it is only a refund of an amount already paid by assessee and reduced from the sale price while computing the profit. Therefore, when assessee gets refund of an expenditure already incurred the same has to be deemed to be the profits and gains of business or profession carried on by assessee in terms of section 41(1)(a) of the Act. In that view of the matter, excise duty refund received by assessee has to be treated as part of the business profit, hence, eligible for deduction u/s 80IB of the Act. Otherwise also, as payment of excise duty is directly linked with the manufacturing of goods, refund of excise duty has to be treated as income derived from eligible business as provided u/s 80IB. In the aforesaid view of the matter, assessee will be eligible to claim deduction u/s 80IB on the income accruing from refund of excise duty .

Is such refund a revenue receipt or capital receipt? This was also an issue before the Tribunal in this case. The Tribunal did not decide this issue as deduction was already allowed under Section 80IB. Maybe an issue for another day - another litigation.

Please see 2015-TIOL-58-ITAT-HYD

Stolen from Customs - Seized again by Customs

IT is heard from distant Shillong that Customs officials in the Myanmar Border recently seized 257 logs of sandalwood. They later found that the same sandalwood was seized by the Customs two months ago. The Customs caught them again after they were stolen from the Customs office. So, actually they seized 514 logs, but there are only 257 logs available. Only they have seized them twice. It is learnt that four Customs officers have been suspended.

Oppose, Expose and Depose; don't disrupt - A noisy minority cannot be allowed to gag a patient majority - President

ADDRESSING students of several universities through Video Conferencing, President Pranab Mukherjee said yesterday:

There is a growing tendency to resort to disruption as a means of Parliamentary intervention. Dissent is a recognized democratic expression, but disruption leads to loss of time and resources, and paralyzes policy formulation. The cardinal principle of Parliamentary Democracy is that the majority has the mandate to rule while opposition has the right to oppose, expose, and if the numbers permit, to depose. But, under no circumstances should there be disruption of the proceedings. A noisy minority cannot be allowed to gag a patient majority.

Parliamentary oversight extends also to two other important functions. Parliament enjoys exclusive power of total control on money and finance. Every taxation and every receipt and expenditure to and from the Consolidated Fund of India is subject to the approval of the Lok Sabha or Vidhan Sabha. The other important supervisory power of the Parliament over the Executive is that the highest Executive authority i.e. the Prime Minister and the Council of Ministers function as long as they enjoy the confidence of the popularly elected House and can be removed by a simple majority of the House through a motion of no confidence .

Dutt Majumder joins TIOL as Consulting Editor

MR. SUMIT Dutt Majumder, one of our most respected tax experts joins TIOL as Honorary Consulting Editor. Sumit is a former Chairman of the CBEC and a former Ombudsman of the CBEC. He had a distinguished service of 37 years in the Revenue Department and had added value to every post he held, be it the Additional Commissioner of Customs in Mumbai or the DG of DRI. He has represented India in several International Customs fora including the WCO.

He has authored two scholarly books - one on Customs Valuation and one on GST. He has studied the GST extensively and is perhaps the best expert on the subject.

We welcome Sumit Dutt Majumder to our Edit Team and present him to you to enrich TIOL.

Jurisprudentiol-Wednesday's cases

Central Excise

Duty paid P.U. foam blocks [CH 39.20/39.21] cut into different sizes and shapes and cleared under CH 39.26 on payment of duty by utilizing CENVAT credit - while denying credit by holding that activity is not ‘manufacture' lower authorities have not disturbed classification - having accepted CE duty paid, appellant rightfully eligible to avail credit: CESTAT

THE appellant is manufacturing P.U. foam sheets and availing the benefit of CENVAT credit. The appellant had procured blocks of P.U. foam and cut them into different sizes and shapes and sold the same on payment of duty. The lower authorities were of the view that the appellant's activity does not amount to "manufacture" and availment of CENVAT credit on P.U. foam blocks was irregular.

SCN was issued for recovery of the CENVAT availed and imposition of interest and penalty. The adjudicating authority confirmed the demand and imposed interest & equivalent penalty.

The Commissioner (A) sided with this decision and, therefore, appellant is before the CESTAT.

Income Tax

Whether rental income derived from temporary sublease of office premises is to be treated as part of business profits eligible for Sec 10A benefits - YES: HC

THE assessee is a public limited company engaged in the business of development of software and export of software. It is a 100% EOU approved by the STP of India. The AO noticed from Schedule "M" to the financial accounts that a certain sum was shown as rent receipt. When that was sought to be clarified, the assessee stated that they were having a branch office at Canada for development of software product. They had entered into a non-cancellable lease for 36 months with the lessor from 01.06.2001 to 31.05.2004. As the company does not carry on any activity other than development of software in Canada and the letting out of the property was inextricably connected with its business operations, the rental income for the period had been claimed as forming part of Section 10A.

The issue is - Whether rental income derived from temporary sublease of office premises is to be treated as part of business profits eligible for Sec 10A benefits. And the answer favours the assessee.

Customs

Notfn. 102/2007-Cus - Refund of SAD - Goods imported in July 2008 and SAD paid - later, goods were detained by CIU for investigation - it was only after the High Court ordered provisional release in March 2010 that goods were sold and refund claim was filed - claim filed in September, 2010 within time: CESTAT

THE appellant filed two Bills of Entry, both dated July 2008 wherein 4% SAD, amounting to Rs.1,11,557/- was paid. The goods were detained by CIU for investigation.

The appellant approached the Bombay High Court and the High Court directed release of the goods on provisional basis vide order dated March, 2010. Accordingly, the goods were released against P.D. Bond issued by the Assistant Commissioner of Customs, CIU.

Thereafter, the appellant sold the goods and filed refund claim under Notification 102/2007-Cus in respect of 4% SAD on 15/09/2010. The refund claim of the appellant was rejected on the ground of limitation - it was held that the refund claim filed after 1 year from the date of payment of Customs duty, relying on Circular No. 06/2008-Cus. dated 28/04/2008, was time barred.

See our Columns tomorrow for the judgements

Until tomorrow with more DDT

Have a nice day.