TIOL-DDT 2594
11 05 2015
Monday

DRI is the Super Sleuth Agency of the Customs and once upon a time only exceptionally talented officers with impeccable integrity were posted in the agency, but time took its toll …..

CAG in its latest report to Parliament, Report No.8 of 2015 - Union Government (Indirect Taxes - Customs), says, "The Directorate of Revenue Intelligence (DRI) was constituted on 4 December 1957 and exercises all the powers specified in Section 100, 101, 103, 104, 106, 107 and 110 of the Customs Act, 1962. DRI has established an intelligence gathering network which relies on traditional human intelligence resources as well as contemporary technical gathering tools. DRI collects, analyses and disseminates intelligence to the field formations, help in investigation and keeps statistics of seizures and prices/rates etc, for watching trends of smuggling, movement of other contraband and suggest remedies for fixing loopholes in existing laws and procedures."

After all this is the Directorate of Revenue Intelligence - they have intelligence enough to deal with Audit. The CAG Audit report wryly remarks, " The records relating to rewards to the informers, cases under investigation and the database of the organization known as ISS (Intelligence Support System) were not produced to audit though the audit intervention was at the level of Director General of Audit. "

Intelligence will not submit to Audit.

However CAG's Audit managed to come to certain conclusions:

1.  DRI does not have any IS Strategic plan for Database Management system. The data maintained manually is not internally audited or monitored.

2.  It was also observed that there was no HR (Human Resources) management policy for recruitment, capacity building, skill upgradation of manpower required to strategically manage and monitor a critical intelligence system.

3.  There is a risk of undetected non compliance of a multi location, multi user critical application like ISS/ DRIPS handling sensitive intelligence data, in an IS organization.

So, Audit recommended:

a.  Independent third party evaluation/assessment.

b.  Appointing/Posting the right skilled persons.

c.  Creation of an appropriate IS organization within DRI.

d.  Building internal walls inside the IS network.

e.  Audit of the database, change management, operating system.

Audit observed, "No Internal control mechanism is in place to get assurance about the effective fulfillment of the tasks/mandate as evident from the cases taken up by DRI. Relied upon documents (RUD) were not provided in the first instance in some cases which could reduce the opportunity given to the parties to respond.

The Statutory audit conducted was closely monitored at the level of Director General of Audit (Central Receipts), Delhi. DRI did not co-operate with audit in terms of sharing the processes and information required to form adequate assurance of its systems and performance ."

The other side of the COIN?

COIN is another sleuth organisation, little known outside a small coterie in the Department. This is the Customs Overseas Intelligence Network known as COIN, mostly filled with former DRI officers. These COIN officers work in foreign countries for Indian Customs.

The COIN units pass on intelligence gathered from overseas or collected on request from the Zonal units, which assists in DRI's investigation.

Audit asked DRI information about:

(i)  The success ratio of intelligence given by the COIN officers in terms of SCN, seizure and recovery.

(ii)  The efficiency of information exchanged with REIC and other intelligence agencies.

DRI replied that this is highly confidential and such details could not be shared with statutory audit. DRI did not even provide information on the number and value of cases aided by COIN.

Audit wondered, "It is not known to audit how is the efficacy of the COIN system independently evaluated especially because there is no technical audit of DRI."

COIN is a prestigious and highly prosperous posting for the ex DRI officers. An officer of the level of Additional Commissioner would get a monthly salary of about three lakhs of rupees, mostly tax-free with a lot of other allowances thrown in plus the attraction of working in a foreign country. (maybe Audit doesn't know this)

And Audit laments that they seem to be above audit!

Rewards - Steadily increasing

THE informers and Government servants are eligible for reward upto 20 percent of the net sale - proceeds of the contraband goods seized and/or amount of duty evaded plus amount of fine and penalty levied/imposed and recovered.

Audit notes, "Though the amount of the reward paid to informers and officers was increasing gradually, when compared to the numbers of Intelligence received and cases selected for investigation, the intelligence/ information and number of cases received/investigated seemed to be decreasing.

Refund to Fund - Does Money really go from Customs to Consumer Welfare Fund?

IN a refund claim in Customs, Central Excise or Service Tax, if the assessee does not pass the ‘unjust enrichment test', the refund has to be credited to the 'Consumer Welfare Fund'. A small survey conducted by us revealed that most of the Assistant Commissioners had no clue as to how to credit the refund to the 'Fund'. And some Assistant Commissioners were not even aware of the Fund. Even those officers who are aware of the Law do not credit the refund amounts to the Consumer Welfare Fund.

The CAG's Audit found one such instance. In its latest report to Parliament [Report No. 7 of 2015 (Indirect Taxes-Central Excise)] , the CAG observes,

Section 11B of Central Excise Act provides for grant of refund if duty relating to refund claim was paid by manufacturer and the incidence of such duty had not been passed on by him to any other person. In case the duty incidence had been passed on to any other person, the amount of refund shall be credited to the Consumer Welfare Fund (CWF).

Scrutiny of records in Belapur Commissionerate revealed a long pending refund claim was decided in favour of the assessee in November 2003 and was remanded back to adjudicating authority to ensure whether the refund was to be provided to the assessee or credited to Consumer Welfare Fund. The case was adjudicated by the Assistant Commissioner who ordered (February 2005) the transfer of the amount of refund to the CWF after verifying the correctness of the amount of refund. However, no action had been taken by the Department to credit the amount of Rs. 59.53 lakh to the Consumer Welfare Fund till August 2009 even after a lapse of more than 4 years.

When we pointed this out (August 2009), the department intimated (January 2014), that the amount of Rs.59.53 lakh was transferred to the Consumer Welfare Fund in January 2014.

We observe that even after the lapse was pointed out by CERA in August 2009, there was a delay of more than four years in transferring the amount to the Consumer Welfare Fund .

Customs Department Ordered to pay Reward to Informer

A Customs informer was before the Bombay High Court in a writ petition with the grievance that the Customs Department was not paying him the balance of reward amount due to him. It is his plea that because of the specific information given by him, the Customs could seize a huge consignment and could even get an amount of Rs. 2.65 crores by selling the confiscated goods. They gave the informer the initial reward of Rs. 5 lakhs and refused to pay the balance.

The Deputy Commissioner of Customs filed a detailed affidavit in the High Court where he took the plea that:

1. The Department already had the information.

2. The Reward Committee was not in favour of any further reward.

3. The contention of the Petitioner that he is entitled to balance reward of Rs.48 lacs is totally misplaced, as the Petitioner cannot claim any reward as a matter of right.

4. The reward is purely ex gratia payment which may be granted on absolute discretion of the authority competent to grant reward and no party can claim the reward as a matter of right.

The High Court did not appreciate this and wondered why the department did not initiate action if it already had the information. The High Court observed,

In our considered opinion, the officers who were in receipt of the said information but failed to act upon it, is a matter of serious concern and also a matter of investigation for the higher authorities. The affidavit of the Deputy Commissioner of Customs in unequivocal terms admits that the Petitioner provided information on 19th July, 2010 about imports of consumer goods by concealing them in five containers and based upon the same, action was taken against the said containers. It is worth to note here that from January 2010 to July 2010 the officers of the Respondent authorities did not act upon so called or alleged information, which was already with them. However, after the receipt of information on 19th July, 2010 from the Petitioner, they conducted the raids in the matter.

We are of the opinion that, the Customs officers at this stage cannot be allowed to take a specious plea that they were already in receipt of the information since January 2010 and therefore, the Petitioner is not entitled for further reward amount.

According to us and in our considered opinion, the stand taken by the Respondent authorities appears to be clearly an afterthought, taken only with a view to deprive the informer / Petitioner from his legitimate dues / payments towards his reward as per the reward policy.

The High Court noted that the informer cannot be left to the whims and caprices and /or mercy of the Respondents and/or the members of the Reward Committee. The High Court also noted that if the payment of reward is not made to the informers within a stipulated period and as per the guidelines prescribed by the reward policy dated 16th April, 2004, the informers will not come forward with information.

Please see Breaking News.

MAT on FIIs - Govt to seek expert opinion

FINANCE Minister Arun Jaitley told the Parliament,

A matter which has attracted considerable debate in the public space in recent weeks is the levy of Minimum Alternate Tax (MAT) on Foreign Institutional Investors (FIIs). The difficulties experienced by FIIs in this regard were brought to the notice of the Government when we were preparing the Budget for 2015-16. Considering their difficulty, the Finance Bill 2015-16 has provided exemption from MAT to the FIIs. Naturally, when an exemption is given, it takes prospective effect. In view of a ruling given by the Authority for Advance Rulings in 2012, it was not possible to provide retrospective exemption for the prior period. Perhaps, this matter should have been addressed in 2012 itself and resolved in one way or the other. The affected party had subsequently gone to the Supreme Court and the matter is pending in the Apex Court. Thus, it may be seen that as soon as the problem was brought to our notice, we have resolved the issue with immediate effect.

I have received a number of representations on this whole issue. We have, therefore, decided to refer this matter as well as a few other tax issues which are essentially legacy issues to a Committee to be headed by Justice A.P. Shah, Chairman of the Law Commission. The Committee will be requested to give its recommendation on the specific issue of MAT on FIIs expeditiously. The Government will consider the recommendations of the Committee and take an appropriate decision as early as possible.

Let me reiterate once again that in matters of taxation, the Government is fully committed to the principles of certainty of taxation, avoidance of retrospectivity and providing an enabling environment to business and investment, both domestic and foreign. We will ensure that these principles are adhered to in letter and spirit.

GST Bill in Rajya Sabha today

THE Upper House is to discuss and perhaps pass the GST Bill today. The Finance Minister is scheduled to move that the Bill further to amend the Constitution of India, as passed by Lok Sabha, be taken into consideration. ALSO to move that the Bill be passed.

Hopefully……..

Jurispruden tiol - Recent SC Judgement

Customs - Refund of deposit (not towards duty) - No unjust enrichment - Department ordered to refund amount with interest of 13%: Here is an interesting case. A and B imported alcohol and sold it to C. The Department felt that A and B had undervalued the goods and so booked cases against them. By that time the goods were with C. Customs seized the goods from C. C was not an importer and no way concerned with the import or alleged undervaluation. Even then his goods were seized. The High Court ordered release of the goods subject to a deposit of Rs. 1.56 crors.

In the CESTAT the undervaluation was not proved and A and B were absolved of the charges. Therefore C sought refund of the 1.65 crores deposited by him. The Department shouted, "UNJUST ENRICHMENT"and rejected the refund claim. Strangely the High Court upheld the unjust enrichment plea and so C is in the Supreme Court.

The Supreme Court noted that the appellant had not imported the goods in question. In the adjudication proceedings, while imposing the duty against the importers, a categorical finding was also recorded at the same time that the appellant had no role to play therein and was a bona fide purchaser of the goods from the importer. It is also manifest that the appellant came into picture only when the goods purchased by the appellant were seized by the custom department and he had to approach the High Court of Bombay for the release of those goods. What is significant is that as a condition for the release of the said goods, interim order directing the appellant to deposit the amount in the sum of Rs.1,56,64,500 was passed. It was not towards any custom duty. In this scenario, it is difficult to hold that the principle of unjust enrichment can at all be applied.  Since the amount in question was deposited in compliance with the interim order passed by the High Court of Bombay, which was not towards duty, the question of unjust enrichment would not arise at all.

The Court ordered that the entire amount shall be refunded along with interest calculated at the rate of 13 per cent per annum.

Perhaps this is the best investment ever made by the petitioner -13 per cent interest for 20 years!

We bring you this case today.

Please see Breaking News.

Until Tomorrow with more DDT

Have a nice day.

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