TIOL-DDT 2734
30 11 2015
Monday

"THE overall list of all drawback EDI shipping bills where export proceeds have not been realised in time should be generated from the BRC Module on 1.3.2016. This list should be immediately placed in the public domain. The Assistant/Deputy Commissioner should issue notices in such cases by clubbing cases pertaining to individual IEC No. to recover the drawback, excluding relevant cases like where such action is already initiated or where the requisite details are produced before notice is issued, etc.", CBEC has instructed its field formations.

The Board adds,

Since the BRC Module is dependent upon information entered manually by designated officers in the EDI for generating the list of actionable cases, the Commissioners have a responsibility that there should not be situations where exporter has proof of submission of requisite certificates or negative statements while the special cells have not entered these details or ask repeatedly for same information. The existence of adequate room to avoid un-fructuous work is evident from the information that a large number of notices related to recovery of drawback on account of absence of reconciliation issued in the past were dropped as proceeds were already correctly realised. This needs to be minimised through better management.

Each Commissioner should firstly ensure that every certificate/statement already received is expeditiously fed in to the BRC Module. Further, Commissioners should issue a public notice latest by 4.12.2015 (also place on their website) seeking submission of the certificates/negative statements by exporters not later than 27.1.2016 for all drawback EDI shipping bills with LEO dates from 1.4.2013 to 31.3.2014. The public notice may also indicate a nodal officer for receiving these documents through submission or post. The concerned Joint/Additional Commissioner should be made responsible for ensuring that the officers, specially designated by the Commissioner to verify the certificate/statement and to make entries in the BRC Module, complete these duties expeditiously. While making the entries, the relevant XOS statements (which do not report on shipment details of goods valued up to USD 25,000) shared by RBI may also be kept in view. It may also be mentioned that specified offices of Customs which receive the XOS from RBI have to share the information with other Customs locations, as may be necessary. All the location-wise cum IEC No.-wise shipping bill numbers that remain un-reconciled as on 31.1.2016 should be placed, along with a public notice dated 1.2.2016, on the website of the field formation giving a further window till 24.2.2016 to the concerned exporters to file the relevant documents. The fresh filings may also be dealt expeditiously under supervision of the said Joint/Additional Commissioner .

CBEC Instruction in F. No. 609/59/2012-DBK., Dated November 27, 2015

Customs -Order of Provisional Release under Section 110A -Appeal lies to the Tribunal - CESTAT Five Member LB

ON Friday, a Larger Bench of Five Members of the CESTAT delivered a landmark judgement on an issue that was doubtful for the last 33 years.

And this time, the judgement was unanimous -all five members agreed.

When goods are seized under the Customs Act, there is a provision for provisional release of goods. Normally even the vehicles carrying the offending goods are seized and if they are not released, they will certainly be damaged.

The issue before the Larger Bench was regarding the right to appeal against an order (of provisional release) passed under Section 110A of the Customs Act which reads as:

Section 110A: Provisional release of goods, documents and things seized pending adjudication - Any goods, documents or things seized under Section 110, may, pending the order of the adjudicating authority, be released to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require .

The Department can, for releasing the goods provisionally demand huge bonds and securities or even cash deposits. Many in the department have a feeling that for certain powers, they have higher authority than the Supreme Court. One such power is the power to release seized goods provisionally. They believe that against such an order, however unreasonable it is, there is no provision for appeal to the Tribunal. If a Commissioner orders provisional release, it is for the party to obey that order and comply with its conditions. The party is not supposed to go round the Tribunal appealing against such a sacrosanct order.

The Revenue argued before the Five-Member Bench:-

1. Section 110A does not provide for any vested right for the owner of the seized goods to get them released prior to issue of show cause notice. It is a discretion to be exercised by the adjudicating authority depending on many things;

2. a decision/order to release or not to release seized goods provisionally, by the Commissioner as an Adjudicating Authority, is subject to judicial review by courts only but is not subject to a statutory appeal to CESTAT;

3. simple communication of a decision by an Adjudicating Authority or not granting provisional release on simply intimating the person who has requested for provisional release cannot be a subject matter of an appeal before CESTAT. It is an administrative discretion by the Adjudicating Authority, pending the final order of adjudication.

The Larger Bench was not impressed and observed,

1. An order for provisional release of seized goods is not to be issued mechanically. The same is issued after due consideration of various factors like the nature of goods, the seriousness of the offence etc. When the order has civil consequences, remedy against any adverse order is by way of appeal. Judicial review by the courts in exercise of constitutional powers cannot be the only automatic recourse as argued by Revenue. Here, the provisions of Section 129A (1) (a) cannot be restrictively interpreted to mean that only final adjudication orders are covered under the terms “a decision or order passed by Commissioner of Customs as adjudicating authority”. There is neither a textual or normative warrant for such interpretation.

2. Another submission by Revenue is that an order under Section 110A is an interim order of the Adjudicating Authority and hence no appeal is available under Section 129A. Such argument apart from being fallacious also presumes that in all cases of seizure of goods, there will be a “final” adjudication order. It may not be so. There may be situations where on completion of investigation no offence is made out against the owner of the seized goods. There will not be any “final” adjudication in such cases. The case is closed.

3. Revenue contended that the appealability of an order for provisional release of goods will impede timely and proper completion of investigation. This argument apart from being ex-facie without foundation reveals a desperation for restrictive interpretation of the meaning of indeterminate expressions or generally worded legislation. However, rule of law demands that legislative text should be given its full and appropriate meaning and force. Possible administrative inconvenience cannot provide valid jurisdiction for not following certain procedures and to eclipse the remedy mandated by legislation.

The Larger Bench held,

(a) the contention that an order or decision by the Adjudicating Authority under Section 110A is administrative or interim in nature is misconceived.

(b) provisions of Section 129A (1) (a) clearly authorize an appeal against an order or decision by the Adjudicating Authority issued under Section 110A. There is no legal basis to restrict the scope of such appeal in the absence of any restrictive conditions in the provision.

We bring you this order today. Please see Breaking News

Implementation of The Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order 2009 -CBEC Wants Strict Implementation

CBEC has instructed the field formations to  strictly implement in letter and spirit the instructions in  F. No. 528/109/2011 - STO (TU)  dated 15th December, 2011.

Other than exempted pneumatic tyres, as provided under sub-clause 3(a) to (f) of the Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order, 2009, no person shall by himself or through any person on his behalf, import, store for sale, sell or distribute imported pneumatic tyres (which include pneumatic tubes) that do not conform to the specified standards and that do not bear the BIS Standard Mark .

CBEC Instruction in F. No. 528/109/2011-STO (TU)., Dated November 20, 2015

CBDT issues Explanatory Notes to Finance Act 2015

CBDT has issued explanatory notes to the provisions of the Finance Act 2015. This is an 83 pages document.

CBDT Circular No. 19/2015., Dated November 27, 2015

CBDT Chief and CBEC Member Retire Today

CBDT Chief Anita Kapur is retiring today. And the Government is yet to announce her successor. The senior-most Member AK Jain has only two months service left. There is a lot of difference between retiring now and after 1.1.2016, if the Pay Commission Report is made effective from 1.1.2016 -to start with a difference of gratuity of 5 lakh rupees.

Will the Government make Mr. Jain the Chairman for two months? Most probably he will be appointed In Charge Chairman and by the time they find a new Chairman, he will retire.

In CBEC, Member Service Tax (and ipso facto GST), VS Krishnan is retiring today. It was widely rumoured that Mr. Krishnan would get a very important post under the GST regime, which he may still do.

Ujal Singh gets re-appointment as Member WTO Dispute Settlement Appellate Body

THE Appellate Body is responsible for hearing appeals of WTO panel reports. It is composed of seven members, each appointed for a four-year term, with a possibility to be reappointed once. The expiration dates of terms are staggered, ensuring that not all members begin and complete their terms at the same time. Members of the Appellate Body must be persons of recognized authority with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally and must not be affiliated with any government. The members of the Appellate Body are appointed by the Dispute Settlement Body.

Ujal Singh Bhatia, a 1974 batch IAS officer, retired in 2010 was appointed a Member of this Body in 2011 and his term was to come to an end on 10th December 2015. Now he has been appointed for a fresh four year term from 11.12.2015.

Until Tomorrow in the 12th year of DDT

Have a nice day.

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