TIOL-DDT 2580
20 04 2015
Monday

AS per Section 75 (1A) of the Customs Act,

(1A) Where it appears to the Central Government that the quantity of a particular material imported into India is more than the total quantity of like material that has been used in the goods manufactured, processed or on which any operation has been carried out in India and exported outside India, then, the Central Government may, by notification in the Official Gazette, declare that so much of the material as is contained in the goods exported shall, for the purpose of sub-section (1), be deemed to be imported material.

In exercise of the power conferred by the above Section, the Government had issued Notification No. 44/91-Cus, dated 30.05.1991, declaring the whole of the material specified in the Table, contained in the goods manufactured in India and exported, deemed to be imported material. The Table contained a list of 100 materials like butyle rubber, cobalt, tungsten etc.

Now, the Government notified an amendment to the notification to omit certain items from the Table annexed to the notification.

All the items except the following five are omitted:

8. Butyl Rubber; 20. Cobalt; 59.Nickel; 75.Selenium and 84. Wattle extract.

For five items should they keep a list of 100?. Now the list will show 95 items as deleted. Anyway that is their choice, but they have amended the wrong notification. They have amended Notification No.44/91-Customs (N.T.) dated the 30th May, 1991.

Notification No. 44/91-Customs (N.T.) actually prescribes the exchange rates. What they wanted to amend was the notification No. 44/91-Customs, not the NT notification.

To be fair to the present wise men in the Board, it has to be mentioned that this is not their original mistake. The mistake was committed by the Board in 2004, when they by Notification No. 133/2004- Cus(NT) dated 25.11.2004 amended the Notification No.44/91-Customs (N.T.) instead of amending the No.44/91-Customs.

In short they amended a 'Customs NT notification' instead of amending a customs notification.

In effect all the 95 items supposed to have been deleted from the list are very much alive in the notification No.44/91-Customs as they amended a wrong notification. If the lawmakers read this, they will come up with a new notification soon and most probably they will supersede No.44/91-Customs and come up with a new notification listing those five items.

Notification manufacture is not all that an easy industry.

Notification No.39/2015 - Cus.,(N.T.), Dated: April 16, 2015

Customs - Valuation - Arbitrary loading of 1% as loading, unloading and handling charge, unsustainable- Supreme Court

THE value for determining the Customs duty shall include loading, unloading and handling charges associated with the delivery of the imported goods at the place of importation. These charges are statutorily fixed at one per cent of free on board value of the goods.

This is the position for the last 25 years, though the law has been amended a few times. This provision of adding 1% of the fob value as loading, unloading and handling charges, even when these are clearly ascertainable, is challenged before the Supreme Court.

The Madras High Court had in 2003-TIOL-204-HC-MAD-CUS held,

"For the purpose of determination of the value, rules have been made and taking into consideration the difficulties experienced in the past in fixing the handling charges on the actuals, it is fixed at one per cent of the CIF value of the goods. When the statute confers the power to make rules for determination of the value, such determination of the value by imposition of the same as a percentage cannot at any stretch of imagination be considered as repugnant to Section 14(1) or discriminatory."

This decision was delivered in October 2012 and the matter was taken in appeal to the Supreme Court in 2003. After twelve years, the Supreme Court delivered a landmark judgement last week.

The Supreme Court observed that wherever actual cost of the goods or the services is available, that would be the determinative factor. Only in the absence of actual cost, fictionalised cost is to be adopted. Here again, the scheme gives an ample message that an attempt is to arrive at value of goods or services as well as costs and services which bear almost near resemblance to the actual price of the goods or actual price of costs and services.

The Supreme Court further observed, "In the present case before us, the only justification for stipulating 1% of the F.O.B. value as the cost of loading, unloading and handling charges is that it would help customs authorities to apply the aforesaid rate uniformly. This can be a justification only if the loading, unloading and handling charges are not ascertainable. Where such charges are known and determinable, there is no reason to have such a yardstick."

So, the Supreme Court held that adding 1% for loading, unloading and handling charges is unsustainable and bad in law and it would apply only when actual charges are not ascertainable.

Though the decision is in relation to the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 , it would equally apply to the present valuation rules, namely., Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 , as the provision is identical.

So, if the cost of loading, unloading and handling charges can be ascertained, the importer need not suffer the 1% addition.

We bring you this important order today. Please see Breaking News.

Customs - Drawback Schedule for zinc oxide amended

GOVERNMENT has amended the drawback schedule for zinc oxide under tariff items 281701 and 281702. Notification No. 110/2014 - Customs (N.T.) is amended.

Notification No.40/2015 - Cus.,(N.T.), Dated: April 16, 2015

Babus can accept gifts up to Rs. 25,000

AS per Rule 11 of the All India Services (Conduct) rules,

1. a member of the service may accept gifts from his near relatives or from his personal friends having no official dealings with them, on occasions such as wedding, anniversaries, funerals and religious functions when the making of gifts is in conformity with the prevailing religious and social practice, but he shall make a report to the Government if the value of such gift exceeds Rs.5,000/- .

2. No member of the service shall accept any gift without the sanction of the Government if the value of gift exceeds Rs.1,000/-. (except as in Sl.No.1 above)

Now these limits are enhanced to Rs. 25,000 and Rs. 5,000 respectively.

DoPT Notification in F.No.11017/31/1999-AIS-111., Dated: April 10 2015

Simplification of SEZ Rules- Inter Unit Transfers

RULE 50 of SEZ Rules, 2006 allows units to transfer goods to DTA or abroad for repair, replacement, testing, calibration, quality testing and research and development purposes under intimation to the Specified Officer, on maintenance of records for movement of such goods, or to any recognized laboratory or institution on giving an undertaking to the authorized officer for the return of such goods.

With a view to promote the ease of doing business further, Government has decided that SEZ Units are now allowed to remove goods for repair, replacement, testing, calibration, quality testing and research and development purposes also on self attestation basis under intimation to the Specified Officer and on giving an undertaking to the Authorised Officer for return of such goods. A record of these will be maintained by the unit as per SEZ Rules.

Department of Commerce (SEZ) Division Instruction No. 84/SEZ., Dated: April 16 2015.

Power Generation in SEZs

AS DDT readers might remember (DDT 2572 - 07 04 2015) the Department of Commerce had withdrawn the 2012 guidelines and brought back the 2009 guidelines on power generation in SEZs.

The Department now clarifies that henceforth setting up of power plants shall be allowed only in the Non-Processing Area of SEZs. Further, those power plants which are presently situated in Processing Areas of SEZs, shall be demarcated as Non-Processing Areas and no operation and maintenance (O&M) benefits will now be available for such power plants.

Department of Commerce (SEZ) Division No.P.6/3/2006-SEZ., Dated: April 06, 2015

Ashok Lahiri Committee Gets an Office

A High Level Committee was constituted with the approval of the Finance Minister to interact with trade and industry on tax laws, headed by former Chief Economic Advisor (CEA), Ministry of Finance, Dr. Ashok Lahiri.

A Press Release informs that:

The Committee is functioning from Suite No. 215, The Janpath Hotel, Janpath Road, Opp. BSNL Building, New Delhi-110001.

The Committee invites various entities/associations/federations/any other stakeholders representing the trade and industry to present their views/suggestions regarding tax laws.

The request for an interaction with the Committee may be sent through email to Sr. Private Secretary to the Chairman at highlevelcommittee@gmail.com or by post at the above mentioned address.

The Committee visited TIOL in January 2015.

16 kgs of Gold stolen from Customs office

ABOUT 16 kgs of seized gold is reported to have been stolen from the Customs office in Tiruchirapalli. The gold was seized recently and kept in the locker for producing in the court. It is reported that one of the smugglers told the police that a customs officer helped him smuggle the gold but another officer nabbed him.

Ease of Doing Business; Less Governance; More Intrusion and Complication

IT seems the babus are out to defame the Modi Government. Just look at the information they want in the new Income Tax Returns they notified last week.

In the new Forms, assessees are required to give details of all the bank accounts (including closed ones) held by them any time during the year with the closing balance as on 31.3.2015. If an assessee has travelled abroad, he has to give details of his travel including the expenses for the travel. In trying to catch the black money hoarders, the Government is trying to harass the white money holders. Your bank account is not a secret, nor is your foreign travel. Most probably the Income Tax authorities already have that information. In any case what are they going to do with the mountain of information?

Anyway good sense seems to have dawned and it is reported that the Finance Minister who is abroad has called up the Revenue Secretary and asked him the review the forms. Most probably new forms will be notified soon. But why should they make paying tax and filing a return so complicated?

Jurisprudentiol- Recent SC Judgements

Cr.PC - Public servants have, in fact, been treated as special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials.. Government servants are protected against prosecution for any official act. No court will take cognizance of an offence by a public servant while discharging his duties, unless sanction to prosecute has been granted by the Government. In a recent case, the Supreme Court held that this cannot be treated as a shield to protect corrupt officials. The provisions dealing with Section 197 CrPC must be construed in such a manner as to advance the cause of honesty, justice and good governance . The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue.

Please see Inspector of Police Vs Battenapatla Venkata Ratnam - 2015-TIOL-78-SC-MISC

Central Excise - SSI Exemption - Reversal of Cenvat Credit on availing exemption. Reversal at a later date will not disentitle the assessee from availing the exemption: The assessee had a credit balance of Rs.86,222/- whereas the closing balance of stock was nil on 1.4.2000, when it started availing the exemption. The amount of Rs.86,222/- related to the credit of inputs was debited by the assessee on 03.10.2000 i.e. on a later date. The Department sought to deny the SSI exemption. The Commissioner took the view that merely because the earlier credit of Rs.86,222/- was debited on 03.10.2000 would not deny the benefit of the exemption to the appellant which was otherwise available. This interpretation given by the Commissioner on the facts of the present case is completely valid and correct. Contrary view taken by the CESTAT is unsustainable.

Please see Sonalac Paints And Coatings Ltd Vs Commissioner of Central Excise, Chandigarh - 2015-TIOL-77-SC-CX

Until Tomorrow with more DDT

Have a nice day.

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