The Coconut oil story - CBEC Withdraws Section 37B Order
13 10 2015
Tuesday
WE carried this story in DDT 1125 04 06 2009
There used to be a small time enterprising businessman in a small town. He purchased a second hand sachet making machine for about Rs. 10,000/-. He used to buy some coconut oil from a mill and pack in sachets of 10 ml and sell them in the Railway Station. The Central Excise Intelligence caught up with him and they booked a case against him for manufacturing and clearing hair oil without payment of duty. His factory was a small room in a small house! Lakhs of rupees of duty with equal penalty got confirmed and the poor fellow simply did not know what hit him. What he could not understand was that the coconut oil in the mill where thousands of kilolitres were ‘manufactured ' and sold, was not taxable, but his few kgs when packed in a sachet became taxable.
Now is coconut oil packed in small containers simply coconut oil falling under 150300 or cosmetics falling under Chapter 33?
This was a major issue bothering our wise lawmakers for many years.
The Board had in Circular No. 145/56/95- CX, dated 31-8-1995, clarified that, coconut oil whether pure or refined and whether packed in small or large containers merits classification under heading No. 1503 as long as it satisfies the criteria of 'fixed vegetable oil' laid down in Chapter note 3 of Chapter 15. It is also clarified that if the containers bear labels/ literature etc. indicating that it is meant for application on hair, as specified under Note 2 of Chapter 33 and / or if the coconut oil has additives (other than BHA) or has undergone processes which make it a 'preparation for use on hair' as mentioned in Chapter Note 6 of Chapter 33 then the coconut oil may merit classification under Chapter 33.
This Circular was issued after the issue was discussed in the Commissioners' Conference, after an enquiry by the Director General (Anti Evasion), after consultation with the Chief Chemist and after using the Board's abundant wisdom.
In spite of this clarification, as Board Circulars receive scant respect in the field, Show Cause Notices continued to be issued and were routinely confirmed.
But in 2009, fresh wisdom dawned on the Board and they realized that the amendments made to the Tariff in 2005 had made the 1995 Circular a little out of place. So the Board withdrew the 1995 circular and clarified by a Section 37B Order in Circular No.890/10/2009 dated 3.6.2009 that coconut oil packed in small containers of sizes upto 200 ml shall be classified under heading 3305 (hair oil).
Now, the size of the container became the decisive factor. They came to this conclusion as it has been gathered that smaller packs upto the sizes of 200 ml are normally used as hair oil by the customers. It has also been reported that in small pack sizes upto 200 ml are stacked along with other hair oil care preparations/cosmetics and not in edible oil section in the retail shops. Enquiries also reveal that small packs of coconut oil displayed at the hair care shelves are used as hair oil only and the customer ask for the smaller packages or the sachets for using them as ‘hair oil'
While reporting the Circular in DDT 1125 04 06 2009, we had asked,
Now, since when is this 1995 Circular withdrawn? From Yesterday or from 1995?
If the amendment to the Tariff in 2005 changed the whole situation, why did it take the Board more than four years to react?
Who is responsible for the loss of Revenue for the last four years?
Will there be Show Cause Notices alleging that the assessee has suppressed the fact the Board is going to issue a Circular in June 2009?
Is this an invitation to go to the High Court/Supreme Court to get the Circular quashed?
What was the provocation to issue this Circular now?
Has the Board got the approval of the Minister before issuing such a clarification?
We will not get answers to these questions in the near future!
Well, we got the answer after six years. They have withdrawn the 2009 Circular!
In 2009, Board's view was that coconut oil packed in small container of sizes upto 200 ml would be classified as hair oil. DDT had suggested that the manufacturers should put 201 ml in the packets and that 1 ml would take it out of the classification of hair oil!
After several Tribunal judgements and dismissal of Revenue appeals by the Supreme Court, the CBEC has now withdrawn the 2009 Circular and the Section 37B order contained in it.
Now the field is free to classify the product taking into consideration the facts of the case read with the judicial pronouncements. THERE IS NO BOARD CLARIFICATION.
To sum up this is what happened:
1. Till 1995, there was no Board clarification
2. In 1995, CBEC clarified that it was not hair oil.
3. In 2009, the 1995 clarification was withdrawn and it was clarified that small packets of coconut oil would be treated as hair oil.
4. The issue went up to the Supreme Court at least twice.
5. Now Board clarifies that there is no clarification.
Who created all the confusion and litigation?
But the Board deserves our thanks for withdrawing that patently wrong and illogical order in Circular No.890/10/2009 dated 3.6.2009. We told them the order was wrong on 4.6.2009; it took them only six years to realize that.
Will coconut oil be dutiable depending on where you use it -food or head?
CBEC Circular No. 1007/14/2015-CX, Dated: October 12, 2015
FTP - Declaration of intent under MEIS Scheme
DGFT has received various representations from exporters and trade & Industry that many Custom House Agents of exporters have inadvertently ticked "N" in the reward item box while filing the shipping bills with Customs. Even though in many cases the item of export is eligible for MEIS (Merchandise Exports from India Scheme), as "N" has been ticked, such shipping bills have not been transmitted to the DGFT system and exporters are therefore unable to obtain / find these shipping bills on the system for submitting claims under MEIS. The system of marking "Y" or "N" is not new and is in operation since 2012. Since para 3.01 (g) of Hand Book of Procedure to FTP (2015-20) does not allow manual feeding of EDI shipping bill details, filling of such claims is not possible manually.
As per para 3.14 of Hand Book of Procedure to FTP (2015-20), all exporters while filling export shipments under all categories of the shipping bills are required to declare the following intent to claim benefit under MEIS:
"We intend to claim rewards under Merchandise Exports from India Scheme (MEIS)".
Declaration of intent is mandatory with effect from June 1, 2015. CBEC has also issued a circular no. 14/2015 dated April 20, 2015, which requires mandatory declaration of intent from 1.6.2015 onwards. In EDI generated shipping bills, exporters are required to tick mark "Y" in case they intend to claim benefits under MEIS and "N" in case they do not intend to claim benefit under MEIS.
The Director General of Foreign Trade has now allowed the following procedure to be followed where exports have been made between 1.4.2015 to 31.5.2015, and where the exporter has inadvertently marked "N" in the "reward item box" and wishes to seek MEIS benefits:
Exporters shall submit physical copies of free shipping bills after electronic filing of application to RA at the time of submission of application for MEIS rewards in these cases. RA shall grant MEIS rewards after examination of such shipping bills in accordance with other provisions of FTP/HBP.
From 01.06.2015, only those shipping bills, which are transmitted by Custom Authorities to DGFT, shall be considered under MEIS.
DGFT Public Notice No.40/2015-2020., Dated: October 09, 2015
Government Invites Suggestions for Budget 2016
THE Finance Ministry has invited suggestions from Trade and Industry Associations for changes in the duty structure, rates and broadening of tax base on both direct and indirect taxes giving economic justification for the same.
Suggestions and views may be supplemented and justified by relevant statistical information about production, prices, revenue implication of the changes suggested and any other information to support the proposals.
Suggestions and views may be emailed, as word document in the form of separate attachments, in respect of Indirect Taxes (Customs, Central Excise and Service Tax) to budgetcbec@nic.in and Direct Tax to ustpl3@nic.in
CBEC F.No.334/10/2015-TRU., Dated: October 08, 2015
Angus Deaton - the Latest Nobel Laureate on India
THIS year's Nobel laureate in Economics, Angus Deaton has made extensive studies on India. He says,
The Indian economy has recently grown at historically unprecedented rates and is now one of the fastest-growing economies in the world. Yet, per capita calorie intake is declining, as is the intake of many other nutrients; indeed fats are the only major nutrient group whose per capita consumption is unambiguously increasing. Today, more than three quarters of the population live in households with per capita calorie consumption below 2,100 per day in urban areas and 2,400 per day in rural areas - numbers that are often cited as “minimum requirements” in India. A related concern is that anthropometric indicators of nutrition in India, for both adults and children, are among the worst in the world. Furthermore, the improvement of these measures of nutrition appears to be slow relative to what might be expected in the light of international experience and of India's recent high rates of economic growth .
Neither Legal Profession is an asylum for criminals Nor law Degrees are shields for their criminal activities
THESE words more in anguish than in anger came in a judgement of the Madras High Court last week. The Court observed,
Legal profession is blighted by the entry of criminal elements. It is seen from a number of cases coming up before this court and also from media reports that persons with criminal background getting law degrees claiming to be advocates are indulging in criminal activities including conducting “Kangaroo Courts”, degrading and damaging the image of noble profession and for which we have to hang our heads down in shame. It is said that many persons claiming as leaders of the Bar are safeguarding and aiding those elements. The sorry state of affairs is not only due to a few members of the Bar, but also, because of entry of criminal elements into the profession by taking advantage of loop holes in 50 year old The Advocates' Act, 1961 and The Bar Council of India Rules regarding admission to law colleges and lack of effective fool proof procedure for enrolling law graduates as advocates. The present pitiable status of the legal profession could be attributed to the miserable failure of the Bar Council of India which is incapable of addressing the menace affecting the system.
Entry of criminal elements into law colleges and legal profession, taking advantage of loopholes in the Advocates' Act, 1961 and Bar Council of India Rules and shielding their nefarious activities with law degrees and committing illegal acts and offences thereby creating havoc in the society and weakening the justice delivery system are circumstances, which are extraordinary and an unprecedented situation. Therefore, the present day pathetic position of legal profession requires extraordinary measures and this Court has to pass unconventional orders/directions, in an effort to redeem the profession .
The Court directed:
1) Union of India is to consider revisiting of provisions of the Advocates Act including Section 24A of the Advocates' Act, or introduce a new Section prohibiting persons with pending cases or criminals entering into legal profession at the earliest considering continuing entry of criminals, communal and extremist elements at the earliest.
2) Bar Council of India shall direct the State Bar Councils to get antecedents verification of all law graduates compulsorily, from their native place as well as from the place of study, from the police for enrolment.
3) Bar Council of India shall direct the State Bar Councils not to enrol any law graduate with pending criminal cases except bailable cases attracting punishment upto three years and compoundable offences involving matrimonial, family and civil disputes, till the changes are brought in The Advocates' Act & Bar Council of India Rules.
4) Bar Council of India shall direct State Bar Councils
a) To grant only conditional/provisional enrolment to law graduates, who are having criminal cases involving bailable offences attracting punishment upto 3 years and compoundable offences including matrimonial, family and civil disputes and to open a separate file/register for this specific purpose which shall contain the number of the case, offences involved, name of the police station, and the Court, who shall communicate to the respective State Bar Council about the disposal of the case enclosing a certified copy of the judgement;
(b) To revoke provisional enrolment of the law graduates on conviction after issuing show cause notice unless the setting aside of conviction is informed to the Bar Council with a certified copy of the judgement.
5) Bar Council of India shall direct the State Bar Councils not to enrol any law graduate, who had already suffered conviction in any criminal case.
6) Bar Council of India shall direct the State Bar Councils not to enrol any person, who have been dismissed or removed from service or left the services consequent to departmental/inhouse proceedings.
7) Bar Council of India shall direct all law colleges to get police verification certificates compulsorily before admitting the candidates to the law degree course.
8) Union of India shall direct all the States to send police antecedent verification certificate within three weeks from the date of receipt of the request made by respective State Bar Councils.
9) Union of India is directed to implement the recommendation of the Hon'ble Supreme court with regard to introduction of pre-enrolment training (Apprenticeship) to law graduates.
10) Union of India is to consider positively, within six months, to entrust the functions of the Bar Council of India to an expert body, headed by a retired Supreme Court Judge permanently or till The Advocates' Act and the Bar Council Rules are revisited, nominating Academicians, Legal Luminaries, prominent social workers, retired I.A.S Officers , police officers and Doctors as members as the electoral system followed by Bar Council failed to elect appropriate persons as members of Bar Council resulting in making the Council incapable of handling issues properly.
11) Bar Council of India shall not conduct the next Bar Council election, after expiry of the present term in 2016, without prescribing minimum qualification like 20 years standing in the Bar or a Senior counsel, who does not have any criminal case or criminal background for the candidates to contest Bar Council elections and till the verification of advocates is done as per “Bar Council of India Certificate and Place of practice (Verification) Rules 2015, by entrusting the functions to an expert body.
12) Bar Council of India shall reduce the number of seats in law colleges drastically and the number of law colleges, as the population of advocates is increasing enormously year after year.
13) Bar Council of India is to abolish three year Law Degree Course at the earliest and retain only five year Law Degree Course on par with other Professional Courses like Medicine and Engineering, to make the course as a serious one and;
14) Bar Council of India shall direct the State Bar Councils to withdraw the recognition/approval given to various Bar/Advocates Associations for the past 20 years maintaining one Court-one Bar Association except older associations.
The Court further observed,
Criminalisation of Bar has already started and is spreading like a wild fire sullying, degrading and destroying the image and prestige of the noble profession. As a member of the legal fraternity and the higher judiciary, for the past 30 years, this Court has been witnessing steep fall in the standards, steady invasion of the profession by criminal, communal and extremist elements, by purchasing law degrees without any basic qualifications and without attendance from Letter Pad Law Colleges and their attempt to disturb normal Court proceedings by boycotts, exhibition of unruly high handed behaviour inside and outside Court and committing offences and covering up by advocate's label as explained in detail. It is very unfortunate that the so-called Bar leaders and many of the Bar Council members are said to be associated with these elements. If this menace is not prevented and curtailed, the day is not too far when Courts will be conducted as per the wishes of criminal elements and communal leaders ending the rule of law. One needs to take a look at the grim and serious state of the legal profession practically. As a member of the legal profession, this Court hopes that the issue of criminalisation of the profession is seriously taken note of by the Hon'ble Supreme Court and the Central Government and appropriate action be taken to redeem the profession from the clutches of persons with criminal background, communal elements with muscle power, persons with extremist ideology otherwise “NEETHIDEVATHAI” (Goddess of Justice) will not forgive all the stakeholders of justice delivery system .
Until Tomorrow with more DDT
Have a nice day.
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