TIOL- DDT 2598
15 05 2015
Friday

FINANCE Bill 2015 was enacted yesterday. Enhanced rate of service tax is not with effect from yesterday - repeat - not with effect from the date of enactment, but only from a date to be notified. So, the Government can notify the new service tax rate of 14% any day now. It appears there is lot of confusion in the minds of taxpayers on applicability of 14% on the on-going transactions.

One may quickly refer to Rule 4 of the Point of Taxation Rules, 2011 and conclude that it takes care of the situation. But, the issue is not that simple.

First, lets us see Rule 4 of the POT Rules. It reads:

4. Determination of point of taxation in case of change in effective rate of tax.- Notwithstanding anything contained in rule 3, the point of taxation in cases where there is a change in effective rate of tax in respect of a service, shall be determined in the following manner, namely:

(a) in case a taxable service has been provided before the change in effective rate of tax,-

(i) where the invoice for the same has been issued and the payment received after the change in effective rate of tax, the point of taxation shall be date of payment or issuing of invoice, whichever is earlier; or

(ii) where the invoice has also been issued prior to change in effective rate of tax but the payment is received after the change in effective rate of tax, the point of taxation shall be the date of issuing of invoice; or

(iii) where the payment is also received before the change in effective rate of tax, but the invoice for the same has been issued after the change in effective rate of tax, the point of taxation shall be the date of payment;

(b) in case a taxable service has been provided after the change in effective rate of tax,-

(i) where the payment for the invoice is also made after the change in effective rate of tax but the invoice has been issued prior to the change in effective rate of tax, the point of taxation shall be the date of payment; or

(ii) where the invoice has been issued and the payment for the invoice received before the change in effective rate of tax, the point of taxation shall be the date of receipt of payment or date of issuance of invoice, whichever is earlier; or

(iii) where the invoice has also been raised after the change in effective rate of tax but the payment has been received before the change in effective rate of tax, the point of taxation shall be date of issuing of invoice.

As can be seen from the above, there are two situations. 1) Where taxable service has been provided before the change of rate and 2) Where the taxable service has been provided after the change of rate. So, first, one has to determine when the service is actually provided, i.e., before or after the change in rate. If that was so simple, perhaps, we don't need the POT Rules. Let us proceed by presuming that I can tell when actually my service is rendered - before or after the enhancement.

Case1: When service is rendered before the change in rate:

Case 2: When service is rendered after change in rate

However, after notifying the POT Rules, 2011, a new Section 67A has been inserted in the Finance Act, 1994 with effect from 28.05.2012, which reads as under:

67A. Date of determination of rate of tax, value of taxable service and rate of exchange. - The rate of service tax, value of a taxable service and rate of exchange, if any, shall be the rate of service tax or value of a taxable service or rate of exchange, as the case may be, in force or as applicable at the time when the taxable service has been provided or agreed to be provided.

A plain reading of the above Section makes it clear that the rate of service tax to be applied is the rate in force at the time when the taxable service has been provided or agreed to be provided.

Please recall that for applying the provisions of Rule 4 above, one has to determine whether the service was provided before or after the change in rate. Once it is known, next step as per Section 67A is only to apply 12.36% if service is rendered or agreed to be rendered before enhancement and apply 14% if the service is rendered or agreed to be rendered after change in rate. No need to apply the criterion of issuing invoice or receiving payment. This makes Rule 4 of the POT Rules contradictory to Section 67A.

This situation has arisen perhaps because the Rules were notified in 2011 and the Section was inserted in 2012.

So, the Board needs to explain with proper illustrations the transition before notifying 14% rate in the light of Section 67A.

In the earlier round when the tax was enhanced from 10% to 12&%, Board had issued two circulars No.158 /9/2012-ST dated 08.05.2012 and No.154/5/2012-ST dated 28.03.2012, both of which were quashed by the Delhi High Court in 2013-TIOL-81-HC-DEL-ST.

Jurispruden tiol - Yesterday's SC Judgements

WE bring you the highlights of two important Supreme Court judgements delivered yesterday.

The Tribunal's judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law.

Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person.. Maybe every tax officer should read these lines every day. The importer imported coal in 1991 and got relief from the Supreme Court now after 24 years. An Inspector drew sample without the importer's presence, crushed it with stones and got a test report to demand a duty of about 4.5 crores from the importers. If you cross that all powerful inspector, you may still get justice - in the Supreme Court - after a quarter of a century.

Please see: Breaking News - Tata ChemicalsVsCommissioner of Customs- 2015-TIOL-120-SC-CUS

Central Excise - Can recovery proceedings be initiated without show-cause notice under Section 11A of the Excise Act, which is mandatory? NO - Supreme Court. It is fundamental that before taking any adverse action against a person, requirement of principles of natural justice is to be fulfilled. It is also trite that when a statute is silent, with no positive words in the Act or Rules spelling out need to hear the party whose rights or interests are likely to be affected, requirement to follow fair procedure before taking a decision must be read into statute, unless the statute provides otherwise.

Why it is necessary that before an adverse action is taken against a person he is to be given notice about the proposed action and be heard in the matter? Why is it treated as inseparable and inextricable part of the doctrine of principles of natural justice? Principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms. The courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.

Please see: Breaking News - Dharampal Satyapal Ltd Vs Deputy Commissioner of Central Excise - 2015-TIOL-121-SC-CX

Principles of Natural Justice - An Analysis

IN the above judgement, the Supreme Court gave a detailed elucidation of the doctrine of principles of natural justice.

Natural justice is an expression of English Common Law. Natural justice is not a single theory - it is a family of views. In one sense administering justice itself is treated as natural virtue and, therefore, a part of natural justice. It is also called 'naturalist' approach to the phrase 'natural justice' and is related to 'moral naturalism'. Moral naturalism captures the essence of common sense morality - that good and evil, right and wrong, are the real features of the natural world that human reason can comprehend. In this sense, it may comprehend virtue ethics and virtue jurisprudence in relation to justice as all these are attributes of natural justice. We are not addressing ourselves with this connotation of natural justice here.

In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision making by judicial and quasi-judicial bodies, has assumed different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must given to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as'natural justice'. The principles of natural justice developed over a period of time and which is still in vogue and valid even today were: (i) rule against bias, i.e. nemo iudex in causa sua ; and (ii) opportunity of being heard to the concerned party, i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is duty to give reasons in support of decision, namely, passing of a 'reasoned order'.

Though the aforesaid principles of natural justice are known to have their origin in Common Law, even in India the principle is prevalent from ancient times, which was even invoked in Kautilya's 'Arthashastra'. This Court in the case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. explained the Indian origin of these principles in the following words:

"Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam - and of Kautilya's Arthashastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system".

Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian in the fifth and sixth Centuries A.D. called it' juranaturalia', i.e. natural law.

The principles have sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide great humanising factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong.

It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms.

It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.

From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary.

Assam Rifles Major abuses IRS Officer - Association protests

IT seems, on 27.04.2015 at around 10 am, Mr.Gaikhonlung Panmei, Assistant Commissioner of Customs was on official surveillance duty when he was intercepted at a check-post between TujangVaichong and Chawang Kining (near Kangpokpi) by a team of 25AR led by Maj Vinod Singh (IC 70040). Mr.Gaikhonlung Panmei displayed his Identity Card to Maj Vinod and his vehicle displayed his official designation. Notwithstanding, Mr.Panmei was detained, poked with cocked rifle, frisked thoroughly twice, and thereafter interrogated for almost an hour. His vehicle was also rummaged (virtually stripped down) twice over, in spite of Mr.Panmei's exhortations to Maj Vinod to recognize his credentials and allow him to carry his work. After the incident, Mr.Panmei was also asked to sign certain papers and declarations.

Mr.Panmei's appeals fell on deaf ears and the 25AR men only got more adamant and got on with their frisking and rummaging. Maj Vinod used abusive language and threatened to arrest Mr.Panmei if he did not shut himself up and co-operate. Maj Vinod also made derogatory references to Customs Department as a whole and Mr.Panmei in particular. Mr Panmei has reported this incident to his departmental superiors and other senior functionaries of Assam Rifles and State government.

Mr.Metta Rama Rao, President of the IRS Association met the MoS, Home and submitted a representation placing on record, "its most serious objection to the manner in which the 25AR men under, and including, Maj Vinod conducted themselves with Mr.Gaikhonlung Panmei on 27.04.2015. You would appreciate that Mr.Panmei was as much on official duty as was Maj Vinod and his men were. The acts of Maj Vinod and his men have demoralizing effect on young officers of our service. Hence it is requested that you may kindly take cognizance of the matter and appropriate action be initiated to deter such behaviour by men in uniform ."The Association further submitted, "It is in the best interests of both organizations that a co-operative and coordinated approach be adopted so that they play their respective roles properly in the service of the nation. Hence you are requested to kindly direct the senior officers concerned in the North East to review the efficacy of the existing institutional mechanisms or create new mechanisms to sustain and enhance close cooperation and coordination among various agencies working there."

Until Monday with more DDT

Have a nice weekend.

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