TIOL-DDT 2839
05 05 2016
Thursday

I literally went overboard today with the word 'overbroad' in the landmark High Court judgement we carried yesterday on the Show Cause Notices issued by DRI - 2016-TIOL-877-HC-DEL-CUS.The following sentences were the cause:

If all officers of the Customs appointed as such prior to 6th July 2011 are deemed to be 'proper officers., then the administrative chaos that is likely to result, as was pointed out in the Sayed Ali case, would persist. The powers conferred would be overbroad since it would be without any territorial or pecuniary jurisdictional limit.

There is merit in the contention that Section 28(11) is overbroad inasmuch as it confers jurisdiction on a plurality of officers on the same subject matter which would result in chaos, harassment, contrary and conflicting decisions.

I asked ten lawyers what the overbroad in the above sentences meant. All of them told me, it must be a typing mistake and the word could be overboard as in the context in which it was used, section 28(11) seemed to 'go to the extremes'.

There is a not so well known doctrine called overbreadth. Laws are required to be clear and precise. If a law is vague or overbroad, it can be declared as not valid. A law must be clear enough to be understood and must also be precise enough that it only applies to activities connected to the law's purpose. A law that is too vague is one that is incomprehensible. To break a law one must be capable of understanding it. An overbroad law differs from a vague law in that an overbroad law may be perfectly clear, but goes too far - the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective.Laws that go too far in the means they employ in implementing a legislative objective are considered overbroad, or unnecessarily sweeping.

In the famous Shreyas Singhal case 2015-TIOL-27-SC-MISC, the Supreme Court held that Section 66A of the Information Technology Act creates an offence which is vague and overbroad, and, therefore, unconstitutional. It was struck down on the ground of overbreadth.

In his scholarly judgement in the L&T case - 2015-TIOL-527-CESTAT-DEL-LB, Justice Goda Raghuram observed,

Whether a legislation intending to extract components of composite transactions and levy tax only on authorized components thereof must specify such intent categorically and employ unambiguous and appropriate verbal formulae, to so signify its specific intention;alternatively, whether ambiguous or overbroad significations would suffice.

Imprecise legislation and which accommodates constitutionally prohibited trenching (by design or default in drafting) and/or in the fond hope that such an overreaching legislation would be administered in a benign fashion (by executive agencies presumably having sufficient scholarship of the jurisprudence of and the limits upon legislative powers, imposed by a federal constitutional arrangement), would not pass judicial muster.

As an inevitable consequence, a vague/overbroad definition of a taxable service coupled with an ambiguous charging and an indeterminate valuation provision, would not suffice.

It's not overboard, but overbroad. Even our proof readers initially got confused and typed overboard, but rectified it later.

Customs - Rewards to Informers - CBEC wants Close Monitoring

IT seems several complaints are being received regarding delay in disbursal of rewards to informers. Board has prescribed a procedure with regard to monitoring of pendency of disbursal of rewards.

Each Commissionerate in the field and each Zone in the Directorates of Revenue Intelligence and Central Excise Intelligence shall have a register in the format prescribed for the purpose of maintaining a record in relation to the 'information' filed through DRI-I or AE-I. (these are the dreadful FIRs in Customs and Central Excise). All the cases booked on or after 1.4.2005 where reward disbursal to informers is pending as on date shall be entered into the register. Adequate care shall be taken not to leave or miss out any case while maintaining this record. It shall be the responsibility of the Deputy/Assistant Commissioner in charge of rewards in the respective formation to ensure and certify that all the pending cases have been entered into the register.

At the end of every month, an abstract of pendency shall be prepared and entered in the register prescribed. The abstract so prepared shall be certified by the Deputy/Assistant Commissioner in charge of rewards and put up to the Additional/ Joint Commissioners concerned for information.

The 'Register of Rewards- Informers' shall be put up to the Principal Commissioners/Commissioners concerned once in six months (in the first weeks of October and April) for information.

A six monthly report in this regard in the format prescribed shall be submitted by 15th of April and 15th of October every year.

Adequate care shall be taken by the field formations to maintain confidentiality and to ensure that while building/maintaining the information, informers are not exposed at any cost. Even while submitting the six monthly reports, no case detail shall be given in such reports; only the pendency numbers shall be furnished.

The monitoring system as stipulated above shall be put in place immediately. All the Chief Commissioners are requested to send a compliance report to the Board by 31.05.2016 positively.

These Circulars are not taken seriously by the field offices.

Circular No.15/2016-Cus., Dated May 03 2016

FTP - Merchandise Exports from India Scheme (MEIS)-Amendments

DGFT has amended the Table 2 [containing ITC (HS) code wise list of products with reward rates] of Appendix 3B under the Merchandise Exports India Scheme (MEIS). MEIS Scheme covers 5012 lines. 2787 lines required submission of proof of landing as reward was not available for all markers.

Henceforth, Landing Certificate shall not be required under MEIS.

DGFT Public Notice 06/2015-20., Dated: May 04, 2016

FTP -Services Exports from India Scheme (SEIS) -Appendix 3E notified

DGFT has notified List of services where payment has been received in Indian Rupees which can be treated as receipt in Deemed Foreign Exchange as per guidelines of Reserve Bank of India in terms of Para 3.08(c) of FTP 2015-20.

DGFT Public Notice 07/2015-20., Dated: May 04, 2016

Revenue Secretary highlights huge pendency in CBEC Field Formations -20,000 cases pending adjudication for more than one year

WHILE reviewing the performance of CBEC in the month of January, 2016, the Revenue Secretary has highlighted the following and advised regular monitoring by Supervisory Officers:

1. 19,496 cases pending adjudication beyond one year, as on 1st January, 2016, in Customs Central Excise & Service Tax, whereas adjudication should not be pending for more than 1 year.

2. 58,991 cases are pending in Call Book, in Customs, Central Excise & Service Tax.

3. 11,357 refund claims of Customs, Central Excise & Service Tax are pending for more than 3 months.

4. 1192 LARs and 90 SOFs, in Customs, Central Excise & Service Tax, have not been replied so far for more than 1 year.

5. 2913 investigations in Central Excise & Service Tax are pending for more than 1 year.

6. Meetings of Regional Advisory Committee in various Chief Commissioner charges have not been held.

7. Regular inspections are not being carried out by the field formations and timely data is not uploaded online through MIS.

The Board is monitoring the monthly performance report of all field formations and the same is being submitted to the Revenue Secretary for review.

Board desires that all Supervisory officers may take immediate steps to eliminate the pendency in key areas of work. It may also be ensured that the data is uploaded on Monthly Information System in a timely manner.

With such huge pendency, one wonders what the officers of the department really do.

CBEC Letter in F.No. 296/29/2016-CX.9., Dated: March 22 2016

Write-off of irrecoverable arrears - CBEC wants action - Rs. 1,83,587 crore arrears

CAN you believe it, there are 1,61,112 cases of write-off, involving an amount of Rs. 1,83,587 crore pending in the CBEC zones?

Chief Commissioner and Commissioners are empowered to write-off irrecoverable amounts of Indirect Taxes upto Rs. 15 Lakh and Rs. 10 lakh respectively. With a view to facilitate and expedite the cases pending for write off of arrears, the Board had issued instructions vide Circular no. 947/07/2011 dated 01.06.2011 (F.No. 296/10/2009-CX.9) for constitution of committees to examine the proposals for write-off of irrecoverable arrears. While the Committee of Chief Commissioners is to be constituted, on receipt of proposal from the zones by the Board, the Committee of Commissioners is to be constituted by the Zonal Chief Commissioner, as and when necessary, on the basis of request of the Jurisdictional Commissioner.

While no proposal to constitute a Committee of Chief Commissioners has been received from any zone, most zones have not constituted the Committee of Commissioners for this purpose, except a few sporadic cases.

As the number of cases of write-off as well as the amount involved therein is substantial and since the competent authorities are not exercising the powers delegated under the Rules to this effect, Board requests the zones to identify the cases for write-off of arrears by the competent authority and constitute the Committee or forward the proposals to the Board, for this purpose.

DDT 868 19-05-2008 had reported an interesting conversation on arrears.

A young Deputy Commissioner was forcefully telling his Commissioner that the arrears are not recoverable and should be written off. The Commissioner wanted to show the arrears under "persuasive action". The Deputy Commissioner said no amount of persuasion can recover the arrears and why can't the Commissioner write off the arrears. The Commissioner told the young Deputy Commissioner, "you will understand why I can't write off the arrears only when you become a Commissioner; for now show them under persuasive arrears.

Individually no officer in the Department would like to write off arrears for fear of Vigilance perhaps, even though they know that the arrears cannot be recovered.

CBEC Letter in F.No. 296/65/2016., Dated: March 23 2016

Adhere to prescribed time limit in filing of SLPs before Supreme Court - CBEC tells field

CBEC sadly notes that in many cases the proposals for filing SLP in the Supreme Court are being sent to the Board much after the time limit of 15 days available with the Commissionerate is over. In fact, in some cases such proposals have been received in the Board after the time limit of 90 days is over. Such delays result in the dismissal of SLPs on the grounds of delay.

As usual, Board has viewed this lapse seriously and reiterates that responsible should be fixed for such delay in all cases. What the Board means is perhaps that responsibility should be fixed.

Board wants the field to scrupulously follow the Board instructions issued in 2010. If they have not followed them for the last six years, what is the incentive to follow them now? Board is going to be serious!

CBEC Letter in F.No. 276/320/2015-CX.8A., Dated: March 29 2016

Mandatory Pre-deposit - Affirmation by High Court - Field to take note

CBEC wants all Chief Commissioners to go through an important judgment of the Karnataka High Court which has upheld the validity of the amended provisions of Section 35F of the CEA, 1944.

The High Court vide its order dated 07.10.2015 dismissed the Writ Petitions which were filed challenging the amended Section 35F of the Central Excise Act, 1944, which requires mandatory pre-deposit for filing appeals.

The Board also tells the Chief Commissioners how to access the judgement from the website of the High Court.

We have reported it as 2015-TIOL-2637-HC-KAR-CX

CBEC Letter in F.No. 390/Budget/10/2016-JC., Dated: March 10 2016

Until Tomorrow with more DDT

Have a nice day.

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