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Pre-Budget Proposal - Cement Industry cries for attention

FEBRUARY 08, 2016

By Arvind Gupta, Sanghi Industries Ltd

Respected Finance Minister,

INDIA's potential in Infrastructure is vast and Cement plays a crucial role in the growth and development of the nation through its contribution in the construction and development of infrastructure. Completing its 100 years of journey in October 2014 with enviable growth the Indian Cement Industry has become second largest producer of cement in the world after China with a state-of-the-art capacity of more than 380 million tonnes accounting for about 8% of the total global production.

We would like to bring to the kind notice of the Hon'ble Finance Minister, through its Pre-Budget Memorandum, major concerns of the cement industry impacting its growth along with the submissions for their redressal.

Cement is as much as essential item required for construction activities as steel but both products are treated differently when it comes to the taxation.

Cement, a high volume low-value product, is highly taxed, even more than the luxury items at 60% of ex-factory price in India. It is pertinent to mention here that average tax on cement in the Asia Pacific Region is just 11.4% with the highest levy of 20% being in Sri Lanka. This has even been acknowledged and recorded in the Report of the Working Group on Cement Industry for XII Plan.

In this backdrop, we would like to submit that while considering our following submissions, Cement Industry's current taxation burden be kindly lowered by at least 20% to 25% from the present level of 60% ex-factory price in the overall interest and growth of both Industry and economy.

Rationalization of Central Excise duty & simplification on Cement

Excise duty on Cement is levied @12.5% + Rs.125 per MT. The Duty Rates are one of the highest and next only to those on luxury goods such as cars. Other core industries such as coal, steel attract duty at around 6%.

Cement is one of the core infrastructure industries and it requires large-scale investments and capacity additions in view of the expected GDP growth and projected demand for cement over the medium to long term.

Further, the excise duty structure for both cement as well as cement clinker has become quite complicated in the last few years. Earlier, it was at a specific rate per MT. Now, it has attracted ad-valorem cum specific duty and is further also related to the declared MRP of the product.

For example, if MRP of cement is printed, then excise duty is 12.5% ad valorem plus Rs.125 per MT. This Excise structure is causing a lot of avoidable confusions.

Hence, to encourage Cement Industry and bring it at par with other core and infrastructure industries, the Excise Duty rate may kindly be rationalized & reduced from the current 12.5% plus specific duty to 6-8% without addition of Specific Duty.

Also, the duty structure be simplified to be either on specific rate per MT or on ad valorem basis and without relating to MRP etc.

Cenvat Credit transfer within one legal identity; Cenvat Credit Distribution within the group companies

Cenvat credit rules should be amended to allow to distribute/transfer the credit within group companies. Provisions of cenvat credit eligibility should be pro-manufacturer and not pro-factory.

It is urged that Government may kindly amend Cenvat Credit Rules to allow transfer/distribute Cenvat credit among the group companies in such case where multi-location manufacturing units are situated.

Single Registration for different Business vertical

The restrictions of Registration of premises should be abolished and provisions should be made single registration manufactures having to multi-locational units. There should be single registration across India for single legal identity which will serve the purpose of better revenue controlling, good administration & ease of doing business.

Customs Duty on coal to be scrapped

Coal is one of the important fuels used by cement Industry. Cement Industry has been subject to perennial shortages of coal, the main fuel.

Approximately, only 26 % of linked coal is received by the member companies against their total fuel requirement for kiln under the Coal Linkage Scheme. This adversely impacts the Cement Industry through increased fuel cost, as the balance requirement of fuel has to be necessarily procured from open market/e-auction, import of coal and use of alternative fuel like Pet coke at a substantially higher rate than linked coal.

In the last Budget (2015-16) the basic custom duty on both steam coal and bituminous coal was increased from 2% to 2.5% while the basic customs duty of coking coal was increased from Nil to 2.5%, whereas on final product ‘Cement', there is no basic customs duty.

This leads to an anomalous situation of “Import Duty on inputs being higher than on finished product”. It is the policy of the Government that Customs duty on Raw Materials and Intermediate goods should be less than that on Finished Goods to encourage manufacturing and value addition in the country.

It is urged that Government may kindly scrap import duty on coal and other input materials used in production of cement. This would remove the aberration in the structure of duties existing in cement imports vis-à-vis its inputs.

On-line facility for filing of Shipping Bills, Amendment & Cancellations and refunds thereon

E-facility of shipping bill submission, amendments and cancellations would help a lot to reduce documentation issues, and assessment etc. This would be environment friendly and a step forward towards “go green”.

It is suggested that on-line facility for filing of shipping bills, amendments in shipping bills filed provisionally (u/s 18 of Custom Act) or otherwise filed u/s Section 17 of Custom Act and cancellation of shipping bills may be implemented unless goods actually been exported.

It is suggested that E-payment of Export duty payment against shipping bill be implemented.

Further, it is suggested that refund claims pertaining to Short Shipment, Cancellation of shipping bills and decrease in realization may also be made online.

Refund of Customs duty - Section 27 of Custom Act 1962

It has been observed that specified time limit is not followed by the officers in granting the refund even after submission of all relevant documents. The prolonged delay in refunds is causing undue financial hardship.

It is suggested that suitable amendment be made prescribing proper time limit for granting of refund which should be obligatory in nature. Further, it is suggested to give mandatory interest on delayed refunds.

Concept of running account for payment of export duty and import duties and suomoto adjusting the due refunds and collecting refunds may be implemented.

It is suggested that in case provisionally filed Shipping Bill is not finalized within a prescribed period, refund claim of excess duty paid be allowed and granted.

Amendment in Shipping Bill filed or cancellation of Shipping Bills filed

Section 149 does not specify the extent of amendment allowed in a Shipping Bill filed against which Goods are not exported. It has been observed that for any change request in shipping bill, Custom Authorities are insisting for cancellation of shipping bill and to submit a fresh shipping bill for incorporating the changes. Further, export duty already paid on cancelled Shipping Bill is not allowed to be adjusted against export duties to be paid against new shipping bill and there is considerable delay in processing and refunding of export duties, paid against cancelled Shipping Bill and is granted after submitting lot of documents and procedural hassles.

It is suggested that suitable amendments be made in section 149 specifying the changes to be allowed in Shipping Bill and documents submitted.

Further, it is suggested that suitable amendments be inserted for allowing adjustment of export duty paid on cancelled Shipping Bill and Short Shipments.

It is also suggested that a set of rules may be prescribed providing methodology to be adopted for amendment or cancellation of shipping bill at different stages like prior to Let Export Date, after issuance of Let Export Order.

Refund mechanism for Certificate of Origin received subsequent to import

Customs duty exemption/ concessions are available on goods imported from various countries wherein India has signed an FTA/CEPA/PTA with such countries. However, in order to avail the customs duty benefits on imports from these countries, the importer has to present a Certificate of Origin (COO) to the customs at the time of import.

It is pertinent to note that the overseas suppliers may not be able to provide the Certificate of Origin as and when the goods are imported and there might be a delay of 7 to 10 days. However, importers are forced to get the shipments cleared without availing the benefit due to urgency and/ or to avoid demurrage charges etc. In such a case, importer has to forego the benefit though the shipments are eligible for duty exemption.

The submission of Certificate of Origin to the Customs authorities at the time of import is a procedural requirement. It is therefore suggested that the importers may be allowed to claim the duty benefit post clearance by way of refund in case the Certificate of Origin is delayed.

This practice is followed in other countries as well. If implemented in India, this will help to reduce the hardship being caused to importers.

Powers of the Commissioner (Appeals) under the Central Excise Act and the Customs Act to condone the delay in filing the appeal

Under section 35 of the Central Excise Act, 1944 or section 128 of the Customs Act, 1962, an appeal before the Commissioner (Appeals) is required to be filed within 60 days from the date of receipt of the order of the lower authorities. The Commissioner (Appeals) is empowered to condone the delay up to 30 days beyond 60 days provided sufficient cause is shown. It has been observed that the said condonable period of 30 days is very short and requires to be increased to either 60 days or 90 days. Further, there are many instances where meritorious cases cannot be pursued because of the above technicality.

The Courts have held that an appeal filed beyond the condonable period cannot be admitted contrary to the statutory provisions, since the Commissioner (Appeals) has no power to condone beyond 30 days.

It is, therefore, suggested that the power to condone appeals be vested with the Commissioner Appeals upto a period of 90 days instead of 30 days with a further appeal to CESTAT in case of delays beyond such period.

Adjustment of Excess Duty paid:

If any payment of Excise is made in excess by Assessee, there is no provision under Excise to adjust the same & the Assessee is left with only option of filing refund for the same.

We suggest that adjustment of excess payment should be allowed in subsequent month/quarter, similar to provision under the Service Tax.

Payment of Cenvat Duty on removal of Clinker for Own Consumption

The benefit of Notification No. 67/95 as amended is to be extended for Removal of Clinker for Own Consumption by other units of same Organization. Now-a-days most of the Cement Manufacturing units are expanding its capacity by installing Grinding Units in different locations to minimize their logistic cost and remove the Clinker from their parent unit to Grinding units on payment of duty, which needs extra fund. No doubt the tax paid by parent unit is eligible for availment of credit of the same by grinding units.

It is suggested that self-certification against removal by parent unit and receipt by grinding units of Clinker may be introduced under Notification No. 67/95 to avoid this payment of Excise Duty on Removal of Clinker to grinding units of the parent unit.

Cenvat Credit on Capital Goods

Ceiling of 50% on capital goods cenvat (50 % to be deferred till next financial year) is to be removed.

At present, Cenvat Credit in respect of Capital goods is available in two parts i.e. 50% of the credit is available in the first year and balance 50% in the subsequent financial year. The above system of taking credit causes a lot of inconvenience and complexity in maintaining records and also in availing of credit apart from financial hardship.

It is, therefore, suggested that full amount (100%) of Cenvat Credit on Capital Goods may be allowed in the year of receipt of goods, as it is also available in respect of inputs.

CENVAT Credit on Clean Energy Cess on Coal

The Govt. has levied a new cess on coal peat and lignite w.e.f. 1.7.2010. Energy Cess is one of the major cost drivers for production of cement.

Though levied as a duty of excise, no cenvat credit is being allowed against this. Further, now even Excise Duty has been levied on coal. This cess, along with state VAT etc. is putting further pressure on an industry faced with surplus capacity, falling realizations and increasing costs.

It is requested that Cenvat credit be allowed on Clean Energy Cess so as to mitigate the impact on costs.

Levy of Customs Duty on Cement Imports

Since 2007-08 import of cement into India is freely allowed without having to pay basic customs duty whereas all the major inputs for manufacturing cement such as Limestone, Gypsum, Coal, Pet coke, Packing Bags etc. attract customs duty. Presently due to low demand of cement in the country more than 116 million tonnes of domestic cement capacity is lying idle and duty free import of cement causes further undue hardship to the Indian cement industry already reeling under low capacity utilization apart from the security concerns inherent in the import of cement from Pakistan.

Therefore, it is requested that to provide a level-playing field, basic customs duty be levied on cement imports into India.

Alternatively,

Import duties on goods – Coal, Pet coke, Tyre Chips, Limestone, Packing Materials & Bags, Gypsum, Refractories etc. - required for manufacture of cement be abolished and freely allowed without levy of duty.

Cenvat Credit on key inputs such as steel, cement, gases etc.

The objective of Cenvat scheme is to allow credit of input tax so as to remove the cascading effect of taxes. Hence, the input credit provision has to be wide. This is more pertinent, on account of the fact that it is the endeavor of the Government to move towards a Goods and Services Tax regime. In such a scenario, restricting input tax credit on key inputs, such as, steel and cement defeats the purpose and principle of Input Credit Scheme particularly when the excise duty is being levied on the sale price of the goods taking into account all expenses.

Valuation of goods - captive Consumption (another unit of the same manufacturer)

We manufacture Clinker in our Clinker Unit and transfer to our Grinding unit for manufacture of Cement. The goods so transferred for captive consumption on payment of excise duty following Rule 8 of Valuation rules read with Board circular No. 643/34/2002-CX dated 01.07.2002, Notification No. 14/2013-C.E. (N.T) dated 22.11.2013 and Board Circular No. 975/09/2013-CX dated 25.11.2013.The department initiated inquiry to demand differential duty on the ground that part of goods sold to independent buyers hence the valuation for payment of duty should be the transaction value of independent buyer.

In the issue of valuation of goods for captive consumption, the board circular No. 643/34/2002-CX dated 01.07.2002 clarified that to pay duty under Rule 8 of Valuation Rules, 2000.

The provisions have been further amended/clarified vide Notification No. 14/2013-C.E. (N.T) dated 22.11.2013 and Board Circular No. 975/09/2013-CX dated 25.11.2013. Further the issues do not have revenue implication as whatever duty paid is eligible as credit at receiving unit of the same manufacturer.

Since the issue leads to unwarranted litigation which may defeat Governments' intention of Tax levy and Litigation Policy.

Therefore we expect that a suitable instructions may please be issued to the field formation to avoid unwanted litigation alternatively suitable Notification may be issued under Section 11C of Central Excise Act.

Demand of duty on Sales Tax (VAT) incentive

The department initiated the demand of differential duty on the amount of Sales Tax retained under State Government Sales Tax incentive scheme across the board.

The Department was aware of the fact that industries were availing Sales Tax incentive since 2002 till February-2013. The department initiated the demand proceedings invoking extended period under Section 11A. The difference in interpretation of wording of statute may not be the intention of Govt. for levy of duty. With regards to this issue of VAT incentive, whether Govt.'s intention to levy tax on the incentive extended by the state Govt. to promote the industry in the state.

The state granted the incentive by allowing the assessee to retain portion of the amount collected as Sales Tax. This technical interpretation difference would not arise if the State Govt. refund the incentive amount after collection.

Cenvat Credit for Service Tax paid on Outward Transportation.

Meaning of ‘Input Service' in the Cenvat Credit Rules, 2004 has been amended vide Notification No. 10/2008-CE (NT) dated 01.03.08 so as to cover services availed for clearance of final products up to the place of removal which is said to include outward transportation up to the place of removal. As per the business practice, the final products are sometimes delivered to the buyer at his place from the factory/depot of the manufacturer and the freight cost for transportation is borne by the manufacturer. In a number of cases, the said definition is being read restrictively by the Dept. to confine transportation of goods only up to the factory/or depot of the manufacturer. Consequently, the availability of Cenvat Credit on Service Tax on transportation service availed by the manufacturer beyond the place of removal and up to the place of the buyer is not being considered as ‘Input Service' and the same has become a contentious issue. Various High Courts and Tribunals have given conflicting judgments on the issue and there is no clarity as on date about the availability of Cenvat Credit of Service Tax on Outward Transportation beyond factory/depot.

In order to remove the ambiguity in this regard, proper explanation/clarification may be provided in the relevant Rules so as to allow credit of Service Tax on transportation of goods which is delivered at the buyers' place from the factory/depot of the manufacturer.

Written off provision in case of natural calamities

Sometimes, in spite of all precautions taken by the assessee for proper safeguard of the capital goods and the inputs on which Cenvat Credit is taken, loss of inputs/capital goods takes place before they are put to use on account of natural calamities, fire etc.

Necessary provisions in the above Rules may kindly be made so that reversal is not required in such events which are beyond the control of the assessee.

Increase of abatement percentage

As per Section 4 of Central Excise Act, Excise duty on Cement is levied on transaction value. In case of bags on which Maximum Retail Price (MRP) is printed, MRP is considered as transaction value. Since MRP consists of excise duty, VAT, freight component, post sales expenses and discount etc. MRP works out very high as compared to transaction value. Moreover in cement industry, billing is done at a higher price and subsequently credit note is issued for all types of discounts/incentives viz. Rate difference, Cash discounts, annual incentives etc. which ultimately results in reduction of net realization of the company whereas excise duty is paid at a higher value which is 70% of MRP.

In view of the above, it is suggested that the existing rate of abatement of 30% may kindly be increased to 55% as the expense to the cement industry is more than the benefits availed on account of abatement. Abatement of 55% was also recommended by NCAER. Even for other sectors, like Readymade garments and made up articles which are covered in Chapter 61, 62 and some specified under 63, abatement is applicable at 70%.

Parity of Interest Rates between Sections 11AA, 11AB and 11BB

Interest for any delayed payment is charged @18% p.a. Under Sections 11AA and 11AB, while the rate of interest on any delayed refund under Section 11BB is only @6%. There is no logic for this disparity and is, in fact, unfair.

There is a need to restore parity between the interest rates and the rates be fixed @10% p.a. for both delayed payments and refunds.

Mandatory pre-deposit of specified percentages of duty / penalty for filing appeals

Section 35 F of the central Excise Act cast responsibility for mandatory pre-deposit of specified percentages of duty / penalty for filing appeals. An appellant, as a Rule of thumb, has to make a pre-deposit of 7.5% or 10% of duty /penalty, or both, as the case may be, for his appeal to be entertained irrespective of how strong the matter is in favour of appellant. In a majority of cases at Tribunal's stage, demands are invariably quashed or amounts drastically reduced and appeals against such orders by the Revenue mostly end in dismissal with consequential benefit of refund of pre-deposits.

Further, in case of small assessee where amount involved in particular case is less than Rs.50 lakhs, then assessee has to file two stage of appeal and needs to pay 7.5% Commissioner Appeals and 10 % with CESTAT; whereas for big assessee where amount involved is more than RS.50 lakhs needs to file Appeal with CESTAT with 7.5% of pre-deposit. This creates discrimination in that smaller taxpayer is unduly subjected to higher pre-deposit.

It is suggested that –

There should not be mandatory pre-deposit. The earlier provision permitting application of wavier of pre-deposit should be reinstated.

Alternatively,

Option be given to the assessee to file for pre-deposit waiver application to CESTAT. If the assessee does not succeed in aforesaid application, then in such cases, pre-deposit be fixed at a rate higher than 7.5% or 10%.

Cenvat Credit on Service used for Work Contract Services, Civil Work related Services in setting up of Factory

W.e.f 1.4.2011, Cenvat Credit on services used for work contract and civil work-related services for setting up a factory has been withdrawn. These services are utmost essential for the purpose of establishment of plant and are at par with the capital goods required as these have a direct nexus with putting the manufacturing process in operation. Hence credit may be allowed on such services for reducing the overall project cost. Disallowing the Cenvat Credit is increasing the fixed costs, whereby the viability of the project is adversely affected and break-even feasibility gets delayed. All these dis encourage entrepreneurs to put up plants which in effect would adversely affect realizing the “Make in India” vision.

It is necessary that appropriate amendment is made in the definition of input services, so that Cenvat Credit on services used for work contract and civil work-related services in setting up a factory is allowed.

Cenvat Credit of services used for construction

In the budget for the year 2012-13, the definition of Input Service was amended so as to exclude availability of Cenvat Credit in respect of services used in construction of buildings or civil structures and goods used for laying of foundation or making of structures for support of capital goods. This amendment is causing lot of hardship to the industry as the services in the nature of construction etc. are essential for enhancing capacity as also for setting up the infrastructure projects and the non-availability of Cenvat Credit of Service Tax paid on such services would escalate cost of projects and would have negative impact on upcoming projects.

It is suggested that Cenvat Credit of Input Services used for setting up of factory may be allowed as per earlier definition.

Reduction in CST Rate and rate of declared goods

The CST rate has remained unchanged at 2%. Further, rate on declared goods is enhanced from 4 per cent to 5 per cent. Declared goods are of special importance like cereals, coal and coke, cotton, crude oil, sugar, textiles, jute, iron and steel, tobacco products, oil seeds, pulses, LPG etc.

Increase in rate has increased the cost of such special importance items especially when they are used for the domestic purpose having no VAT benefit.

It is suggested to reduce CST rate to 1% and bring down maximum CST rate of declared goods to 4%.

Facility to submit Form C, E etc. online

Section 6 is charging Section. As per Section 6(2) subsequent inter-state sale transaction taking place by transfer of documents of title to goods, when the goods are in course of movement, are exempt. For this purpose the claimant dealer has to obtain Form E-1 from his vendor (if such vendor is first seller otherwise, E-II) and Form ‘C' from the buyer. One ‘C' form can be issued for one quarter of a financial year. Similarly EI/EII can also be issued on quarterly basis. Under Section 6A, branch/consignment transfer is allowed only if Form ‘F' is produced, else it will be deemed to be a sale. Form ‘F' is required to be obtained from transferee branch/agent. One Form ‘F' can cover transfers affected in one calendar month.

Central Government has also substituted sub rule (7) to rule 12 with effect from 1st October, 2005. Form C or certificate in Form E-I or E-II will have to be submitted to sales tax department within three months from the end of the quarter in which sale is affected. In case of Form F, it is to be obtained on monthly basis and it is to be submitted to the sales tax department within three months from the end of the month in which goods are transferred to the interstate branch or agent.

It is suggested that with a considerable development in technology, all the relevant forms under Central Sales Tax Act like Form C, E, F etc. be allowed to be filed online. This will not only expedite the process of submitting the forms but also will save the time and streamline the process.

Form E-1 is issued by the seller of goods in case of first sales made. At the time of subsequent sale form E-II is required to be issued by the seller. It is suggested that Form E-I be allowed to be used as self declaration form by intermediate sellers in order to avoid exchange of various forms in the process.

Introduction of annexures in Central Excise & Service Tax returns for capturing Sales & Purchase details to align with the proposed GST regime

Presently, in most of the States, VAT dealers are required to provide their sale/ purchase details while filing of VAT returns.

It is suggested that under present scenario also for Service Tax & Central Excise summarized details of invoices be required to be submitted through the ACES website along with the Service Tax/ Excise returns. This will provide better transparency, reduce litigation and would also be in line with the proposed GST regime.

ACES to have facility of filing Single Return for all the factories or premises of an assessee instead of independent return for each factory or premises. This will also enable ease of doing business & will be in line with consolidated returns under proposed GST regime.

We, therefore, request your kind self that Government considers our submissions & suggestions & help this Core Sector to grow.

(DISCLAIMER : The views expressed are strictly of the author and Taxindiaonline.com doesn't necessarily subscribe to the same. Taxindiaonline.com Pvt. Ltd. is not responsible or liable for any loss or damage caused to anyone due to any interpretation, error, omission in the articles being hosted on the sites)

 


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