TIOL-DDT 2717
03 11 2015
Tuesday

THE Supreme Court recently upheld an order of the CESTAT wherein the CESTAT had observed,

The case of the Revenue is that at the time of importation the required Certificate was not produced. The objection of the Revenue that at the time of import, the Certificate was not produced is not a very strong ground for denying the benefit of Notification. There is a plethora of decisions in which various Courts and Tribunals have accepted the production of Certificate even after the importation for granting benefits. The appellant, after representing to the concerned authorities, obtained a Certificate to the effect that the scheme of renovation has been examined thoroughly and approval accorded for the same. The Principal Secretary, Government of Karnataka has also recommended the exemption under the said Notification. The list of spares recommended have also been mentioned. The General Manager of the Karnataka Power Transmission Corporation Ltd. has certified that the spares listed in the letter of the appellant are essential for the proper upkeep of the generating units. Once the competent authority is satisfied that the impugned goods are required for renovation, the Customs Department need not go deep into hair splitting and semantic niceties to deny the benefit of Notification.The DRI had taken up the matter with the State Government who have confirmed the approval of the Scheme. Once the scheme is approved by the State Government for the Power Project, in our view, the benefit of exemption Notification cannot be denied.

The Supreme Court agreed with the Tribunal observing, "The Tribunal is quite correct in stating that once these authorities are satisfied that the impugned goods are required for renovation, the customs department does not need to go deep into the matter and by hairsplitting and semantic niceties deny the benefit of the exemption notification. The finding of the Commissioner has been correctly set aside by the Tribunal and hence we dismiss revenue's appeal."

We bring you the Supreme Court order today. Please see Breaking News

Customs Broker Licence - Appealing to Tribunal, a misconduct warranting revocation of licence?

SOME interesting facts:

On 20.12.2013, the Commissioner of Customs passed an order for continued suspension of a Customs Broker for not submitting a security of Rs. 5 lakhs as required under the new regulations. In the preamble to his order, the Commissioner mentioned that the Customs Broker, if aggrieved can appeal to the Tribunal and that is exactly what the broker did.

The Tribunal in its order dated 10.03.2014, directed the broker to comply with the directions of the Commissioner, which he did.

In the meanwhile, on 08.01.2014, a Show Cause Notice was issued to the broker requiring him to show-cause as to why his license should not be revoked and security furnished by him should not be forfeited and why a penalty should not be imposed upon him.

This show-cause notice culminated into an order passed by the Commissioner on 13.05.2014, revoking the customs broker license, forfeiting security in full and further imposing a penalty of Rs.50,000/- upon him in terms of Regulation 18 of the CBLR 2013.

The broker is before the Tribunal again. The Tribunal found that the reasoning of the adjudicating authority for refusing to renew his license and revoking the same is that the appellant did not honour the directions of the Commissioner for furnishing the security of Rs.5 lakhs in terms of the new Regulations and as such the said action on the part of the assessee amounts to misconduct thus making him misfit for carrying out the work of Customs Broker .

The Tribunal further observed, "The question is as to whether such conduct of the appellant in not accepting the Revenue's direction and challenging the same before the higher appellate forum can be considered to be a misconduct on his part as Custom Broker License holder so as to revoke his license. The answer to such a question, by any reasonable prudent man would be emphatic "NO". Appellant's license which has already been renewed by Commissioner himself till 2021 cannot be revoked on this sole ground that instead of accepting the directions of the Commissioner, the appellant has chosen to file an appeal before the Tribunal. As such, we find no merits in the impugned order of the Commissioner revoking the appellant's license and imposing penalty on him. The order is set aside and the Revenue is directed to immediately restore the appellant's license as he has already fulfilled the conditions imposed upon him by the Revenue and as upheld by the Tribunal."

We bring you the CESTAT order today. Please see Breaking News/2015-TIOL-2353-CESTAT-BANG

CBEC - Please enable assessees to view NSDL challan report

WE got this mail from a concerned Netizen:

As of now, an assessee has no access to view a list of challans paid by him during a specified period.

On NSDL site, if the assessee enters challan number (CIN), and amount, the site returns whether the amount matches or not. But a report of all challans (like Form 26 AS in case of Income Tax) is not available.

Thus, if somehow an assessee does not have a challan or its CIN, it becomes helpless. This becomes a big problem in audit or anti evasion inquiries.

This report is accessible to Range office. But the officers have no clarity whether they can officially give it to the assessee or not.

I have requested aces helpdesk to provide a facility to view challan report for excise and service tax challans (just like Form 26 AS in case of Income Tax).

Can CBEC/ACES/NSDL do something?

Income Tax - Interest from Non-SLR securities of Banks - CBDT clarifies

IN the case of  CIT Vs Nawanshahar Central Cooperative Bank Ltd. -   2005-TIOL-94-SC-IT ,  the Apex Court held that the investments made by a banking concern are part of the business of banking. Therefore, the income arising from such investments is attributable to the business of banking falling under the head "Profits and Gains of Business and Profession".

Even though the above mentioned decision was in the context of co-operative societies/Banks claiming deduction under section 80P (2)(a)(i) of the Act, the principle is equally applicable to all banks/commercial banks, to which Banking Regulation Act, 1949 applies.

In the light of the Supreme Court's decision in the matter, the issue is well settled. Accordingly, the CBDT has decided that no appeals may henceforth be filed on this ground by the officers of the Department and appeals already filed, if any, on this ground before Courts/Tribunals may be withdrawn/ not pressed upon.

CBDT Circular No. 18/2015, Dated., November 2, 2015

Good Behaviour by Examiners/Appraisers of Customs

IN a meeting of the Trade Facilitation Committee of Mumbai Customs, a Member stated that good behaviour is expected from Examiners/Appraisers and suggested that training may be imparted in this regard. The Commissioner informed that he already had a meeting with AOs and ACs and had explained them about government's policy of "Ease of doing Business". They have also been enlightened that they are the face of the department and their behaviour reflects the department. So good behaviour is expected from them and regular training in soft skills would include training in attitude and behaviour towards trade and other stakeholders.

And the point was closed!

New Officers mean New Interpretations

IN the same meeting, a Member stated that posting of new AOs and ACs leads to new interpretations and they ought to be trained before posting. Commissioner informed that two days training for newly posted AOs and ACs before joining new group/section is already in place. It was suggested that a compendium of relevant standing orders, public notices etc be handed over to the officers on joining in a new section which will help them in dealing with matters of the new Groups/sections. Addl Commissioner informed that S.Os and P.Ns are already uploaded in the website. Commissioner remarked that searching the website for a particular matter is practically painstaking job, therefore induction material for each group/ section may be compiled containing the relevant S.Os and P.Ns. He also sought cooperation from the trade association to provide relevant materials for compilation.

Denial of Cross Examination - Department loses the case

AN overanxious Commissioner's impertinence in denying an assessee the opportunity of cross examining the witnesses, cost the revenue dear. It lost the case in the High Court - after 23 years. The High Court observed, "It is settled law that the denial of an opportunity of cross-examination of a witness whose statements have been relied upon in the adjudication order would vitiate the order of adjudication."

The High Court quoted a Supreme Court judgement to the effect that when a statement is used against an Assessee an opportunity of cross-examining the persons who made those statements ought to be given to the Assessee.

Please see 2015-TIOL-2230-HC-DEL-CX

Until Tomorrow with more DDT

Have a nice day.

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