TIOL-DDT 2569
31 03 2015
Tuesday

THE current Foreign Trade Policy 2009-14 ends today. Does it mean there would be no foreign trade policy from tomorrow? Not exactly! The new Foreign Trade Policy is to be launched tomorrow. And the world comes to know about this through a twitter message from the Minister of State for Commerce and Industry Ms.Nirmala Sitharaman. She tweeted, "FTP to be released on 1st April, 2015 at 3:30 pm in Vigyan Bhawan." Beyond this there is no official communication.

The last supplement to the Policy was on 18.04.2013.

Let us hope the new policy will promote the ease of doing business.

Tax can be paid till midnight today

CBEC informs that Reserve Bank of India has issued instructions vide RBI/2014-15/515 dated March 25, 2015 wherein it has been decided that all agency banks shall keep the counters of their designated branches conducting government business open for full day on March 30, 2015, and till 8.00 p.m. on March 31, 2015. All electronic transactions would, however, continue till midnight of March 31, 2015.

Thus the assessees can make e payment till the midnight of March 31, 2015 .

CBEC Circular No.182/01/2015 - ST., Dated: March 27, 2015

FTP - Guidelines for processing of online IEC applications

IN continuation of the guidelines for processing online IEC applications, issued in Policy Circular No. 15 dated the 31st December 2014, DGFT has laid down further instructions and checklist for processing of the IEC applications.

DGFT Policy Circular No.No. 17 (RE-2013)/2009-2014 ., Dated: March 30, 2015

Customs - Exemption to Goods from Japan - rates further reduced

THE Government has amended Notification No. 69/2011 - Cus dated 29.07.2011 regarding concessional rates of duty for imports from Japan. Now, the rates of concessional duties are further reduced.

Notification No.13/2015-Cus., Dated: March 30, 2015

Company Law - Amounts received by private companies from their members, directors or their relatives before 1st April 2014 - Clarification

WILL the amounts received by private companies from their members, directors or their relatives prior to 1st April, 2014 be considered as deposits under the Companies Act, 2013 as such amounts were not treated as 'deposits' under section 58A of the Companies Act, 1956 and rules made thereunder?

The Ministry of Corporate Affairs clarifies:

Such amounts received by private companies prior to 16th April, 2014 shall not be treated as 'deposits' under the Companies Act, 2013 and Companies (Acceptance of Deposits) Rules, 2014 subject to the condition that relevant private company shall disclose, in the notes to its financial statement for the financial year commencing on or after 1st April, 2014 the figure of such amounts and the accounting head in which such amounts have been shown in the financial statement.

Any renewal or acceptance of fresh deposits on or after 1st April, 2014 shall, however, be in accordance with the provisions of Companies Act, 2013 and rules made thereunder.

MoCA General Circular No. 05/2015., Dated: March 30, 2015

Pension Cut for CRPF Commandant using an official vehicle while on leave

HERE is the grave charge against a former CRPF Commandant.

Shri xxx, Commandant, 2nd Bn CRPF while posted and functioning as Commandant 14 Bn, CRPF Amritsar during 1993 committed a serious misconduct, in that on return from GC II Ajmer after completion of Govt.duty and while availing casual leave from 17.12.93 to 20.12.93 enroute at his residence in Chandigarh ordered on 16.12.93 move of Service Car and Gypsy Regn. No.DL-4C 7464 with escort from Amritsar to Chandigarh and used the vehicle for his private purpose while he was on casual leave at Chandigarh. Thus the said Shri xxxx, failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Govt. servant and thereby violated the provisions contained in Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964.

And that triggered a long-winded legal battle.

In 2002, a penalty was imposed on the officer, which was reduction in pay by three stages for three years. The Delhi High Court set aside this penalty in 2008 on procedural grounds, but the Court allowed the department to proceed ahead in accordance with the law.

The Department started proceedings again. In the meantime, the officer got retired and so they imposed a penalty of reducing his pension by 5%.

In this case UPSC had observed, that the period in question was when terrorism was not fully eradicated in Punjab and thus the petitioner having required a despatch service car and Gypsy to be sent to Chandigarh to transport him back to Amritsar was justified.

The matter again reached the Delhi High Court which last week held: the misconduct, if any committed by the petitioner, is not a grave misconduct and thus we quash the penalty levied of 5% cut in pension for a period of six months.

Gallantry Award sought to be withdrawn: The officer's woes did not end there. In view of the above misconduct, a gallantry award given to him by the President of India in 2006 was sought to be cancelled. The Delhi High Court observed, "the very initiation of the action to withdraw the gallantry medal is premised on noting facts which have no concern with the issue of the gallantry medal. Further, the basis to initiate the action to withdraw the gallantry medal is founded on the penalty levied upon the petitioner of 5% cut in pension for six months, which penalty we have quashed and thus for said additional reason the said action to initiate cancellation/withdrawal of the gallantry medal is required to be quashed. We do so."

The gallant officer's valiant fight for the sin of misusing a Government vehicle hopefully ended after 22 years - that is if the Government does not appeal to the Supreme Court.

You can see any number of Revenue and other officers strongly believing that the official vehicle is meant for their private use. You go to a market, temple, mall, theatre - you will find a few government vehicles - but then that is enough to torture an officer for more than two decades.

The punishment for many legal proceedings is not the end result, but the journey itself.

Jurisprudentiol- Recent Supreme Court Judgements

Central Excise - Valuation - Cost of free issue materials. Tribunal remanded the case to adjudicating authority for fresh adjudication. Assessee challenges that order in the Supreme Court. In the meanwhile adjudicating authority passes order again on remand. Against that order, assessee's appeal allowed by CESTAT. Against CESTAT Order, Revenue in appeal before Supreme Court: Assessee's appeal infructuous; Revenue Appeal Dismissed: The question of law in this case is not important, the tortuous journey of litigation is. The assessee is a manufacturer of Earth Moving equipments which they supply to Bharat Earth Movers Limited. The material is supplied by the BEML free of cost and after manufacturing the equipments the same are supplied to the BEML by the assessee. The question is whether that cost is to be included in the value for the purpose of excise duty in the hands of the assessee. The CESTAT remanded the case to the adjudicating authority, against which the assessee is in appeal before the Supreme Court, because its plea of limitation was rejected by the CESTAT. By the time the case came up for hearing before the Supreme Court, the adjudicating authority had already decided the issue a second time - naturally confirming the demand. Against this order, the assessee approached the Tribunal and the Tribunal set aside the order of the Commissioner. This time Revenue approached the Supreme Court. So, now there are two appeals in the Supreme Court, one by the party and one by Revenue, both arising out of the issue whether the cost of free issue material has to be included.

An interesting Turn: When the case of the assessee was called for hearing, the counsel for the Revenue stated that he has not been given any instructions to appear in this appeal and he was not aware as to whom this appeal is granted for arguments. However he has agreed to appear in this appeal and the Revenue appeal at the request of the Court. (That's how Revenue manages its cases)

Since the show cause notices and consequent thereto the order passed by the adjudicating authority itself stands set aside by the CEGAT on merits, the Supreme Court held that the assessee's appeal has become infructuous.

That leaves the Revenue appeal yet to be decided. The Revenue's Counsel (by Court Request) requested for two days time to prepare that case. The Supreme Court found that the case is covered by the judgment of this Court in International Auto Ltd - 2005-TIOL-81-SC-CX-LB and dismissed the Revenue Appeal.

Please see Ghatge Patil Industries Ltd Vs Commissioner of Central Excise - 2015-TIOL-31-SC-CX

Central Excise - No exemption for an intervening period - Compounded rubber was exempted from 25.5.1987. This was withdrawn on 1.3.1994 (by mistake), along with exemption for 389 products. On 28.3.1994, the exemption was restored. Thus there was no exemption for the period from 1.3.94 to 27.3.94..: Compunded Rubber manufactured and captively used was exempted since 1987. On 1.3.1994, the Government rescinded 389 notifications and this rubber also got swept away in the flood. The mistake was realised and on 28.3.1994, Government again issued a notification allowing the exemption. Thus there was no exemption for the period from 1.3.1994 to 27.3.1994. Whoever issued this notification knew pretty well that they were correcting a mistake, but the Revenue has no qualms about punishing the assessee for the babu's mistake.

And this case reached the Supreme Court. After about twenty years of raising the issue, the Supreme Court decided that the assessee was eligible for the exemption following the decision in the case of W.P.I.L. Ltd. vs. Commissioner of Central Excise, Meerut, U.P. - 2005-TIOL-51-SC-CX- LB

During the pendency of the appeal, the assessees were asked to make pre-deposit, which is now directed to be refunded. We don't know whether the Department will follow the Apex Court's directions or start a new litigation. Ease of doing business ?

Please see Ralson (India) Ltd Vs Commissioner of Central Excise - 2015-TIOL-32-SC-CX

Central Excise - Exemption to goods manufactured in rural areas by registered co-operative societies - it has been established by the respondent that the conditions contained in the exemption Notification are satisfied. Not only this, the respondent is armed with a certificate issued by the Department of the Electronic to the effect that the individual components were assembled in the factory of the respondent which is in a rural area. No question of law..: The dispute is as to whether the assessee is entitled to exemption under the Notification 88/88 C.E. dated 1.3.1988 which gives exemption to village industries i.e. where such goods are manufactured in rural areas by registered co-operative societies, or by women's societies or by the institution recognised by village Industries Commission or Board on certain conditions which are laid down in the said Notification. One of the conditions specified is that the exemption shall be applicable only if individual components of such electronic goods are assembled in rural area of such societies.

The Commissioner was satisfied that the assessee, a Cooperative society satisfied the conditions, but the revenue took the matter to the Tribunal where its appeal was dismissed. Never the one to say, no to an appeal, the Revenue filed an appeal against the Tribunal order to the Supreme Court.

The Supreme Court observed, it has been established by the respondent that the conditions contained in the exemption Notification are satisfied. Not only this, the respondent is armed with a certificate issued by the Department of the Electronic to the effect that the individual components were assembled in the factory of the respondent, which is in a rural area.

The Supreme Court did not find any question of law for consideration in the appeal, which is accordingly dismissed.

Please see Commissioner of Central Excise Vs SANNIHITA ELECT W W IND COP SOC LTD - 2015-TIOL-33-SC-CX

Central Excise - SSI Exemption - Brand Name - No exemption if the brand name of another person is used.

Facts: Tata Iron and Steel Company Ltd. (TISCO) has given authorization to the respondent to manufacture TISCOG. This not only gives authorization to the respondent to manufacture the goods i.e. Steel Cog Stool as per the TISCO patent design but also gives right to the respondent to market the said goods. The respondent has been receiving orders from various parties to manufacture and supply it to them the Steel Cog Stools with the patent design for which authorization is given by TISCO Ltd...: The respondent did not pay any excise duty on the premise that it was entitled to the exemption under the Notification 1/93-CE. When the show cause notice was issued to the respondent to pay the excise duty, defence of the respondent was that the respondent was not affixing the said brand name TISCOG on the goods which were supplied by respondent to the parties from which he received the orders. It was stated that such a name was mentioned only in the invoices which were raised by the respondent. This contention was not accepted by the Commissioner in his order, but Tribunal allowed the appeal. Revenue is before Supreme Court.

Held: the impugned order of the CEGAT is untenable and not in accordance with law. It is not necessary that there has to be affixation of the name or mark on the goods.

Penalty: non-payment of duty by the respondent was bona fide act, having nurtured a belief that it was not liable to pay the excise duty on the goods. Penalty set aside.

Please see Commissioner of Central Excise Vs Tubes & Structurals - 2015-TIOL-34-SC-CX

Anubhav at Work - Pristine Postman

PRIME Minister Modi's idea of Anubhav - a website for retiring Government employees to share their experiences is a huge success, especially at the lower levels. Here is the inspiring anubhav of a postman who is retiring today.

DDT wishes Jai Narain, the Postman a happy retired life. We wish there were more like him.

If you can't be a pine on the top of the hill
Be a scrub in the valley--but be
The best little scrub by the side of the rill;
Be a bush if you can't be a tree.

If you can't be a bush be a bit of the grass,
And some highway some happier make;
If you can't be a muskie then just be a bass--
But the liveliest bass in the lake!

We can't all be captains, we've got to be crew,
There's something for all of us here.
There's big work to do and there's lesser to do,
And the task we must do is the near.

If you can't be a highway then just be a trail,
If you can't be the sun be a star;
It isn't by size that you win or you fail--
Be the best of whatever you are!

Until Tomorrow with more DDT

Have a nice day.

Mail your comments to vijaywrite@tiol.in