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Govt reduces tariff value of gold and silver 50 IRS officers of CBDT, 1987 Batch empanelled for JS-level post (See 'Service News' in 'Pitara') India's External Debt up by 7.6% to USD 440 bn (See 'Mixed Buzz') Cus - Old & Used Propping pipes used for construction service are to be treated as capital goods and as per para 2.17 of FTP second hand capital goods are freely importable: CESTAT (See 'Breaking News') Retrospective Amendment of 2012 - CBDT Constitutes High Level Committee (See 'DDT' Column) We would expect Tribunal, which is manned by both judicial & technical experts, to be aware of seriousness of adjudication and not take up assignment casually - undue haste is not at all called for as it results in miscarriage of justice: HC (See 'Breaking News') Amendment to Sec. 67A - Service tax on foreign currency payments (See 'ST se GST tak' Column) I-T - Whether when first appellate authority has directed AO to pass speaking order before charging interest, such an order can be construed as restrictions being imposed on AO from levying interest under particular Section - NO: Delhi HC (See 'Breaking News') Constitution of Review Committee of Chief Commissioners/Commissioners - CBEC Orders (See 'DDT') CX - Benefit of exemption under Notification No 4/2006 is prima facie not admissible for cement used for construction work within factory premises - CESTAT orders pre deposit (See 'Breaking News') There is no specific target to be achieved - undue haste is not at all called for + Abhishek Verma Nominated for Arjuna Award-2014 for Archery (See 'DDT') PM launches Jan Dhan Scheme to eradicate financial untouchability Govt imposes 20% Safeguard Duty on import of Saturated Fatty Alcohols (See 'SG' in What's New) ACC extends tenure of M N Prasad, Executive Director, World Bank till October-end EPFO mulling Rs 1000 pension scheme from Sept 1, 2014 Black Money - Policy needed to dent into 'Tiny Machines' of tax evasion (See 'THE COB (WEB)' Column) Service Tax - so long as activity is service and even if it is not taxable, it has to be considered as an exempted service - it is not necessary that service should be taxable and an exemption notification exempting from levy of service should have been issued: CESTAT (See 'Breaking News') Service Tax – Certificate Issued by Railways to be a valid document for taking credit (See 'DDT' Column) Income tax - Whether registration to a Trust u/s 12AA can be refused merely because it earned some income from housing projects but applied the same towards charitable objectives - NO: HC (See 'Breaking News') Appointment of Ministers with Criminal Record – Supreme Court not to interfere – Leaves it to Prime Minister (See 'DDT') CENVAT – If any goods are transported through pipeline or by other means, if they are not solid, there is every chance of loss of quantity by way of evaporation – CENVAT credit cannot, therefore, be denied on quantity involved in transit loss: CESTAT (See 'Breaking News') INTERPOL appoints Shah Rukh Khan as Turn Back Crime Ambassador PM sets up Committee to identify defunct laws within three months CENVAT Credit Rules amended relating to service tax certificate for Transportation of goods by Rail (See 'EX NT' in What's New) SC goes with Competition Commission on issue of Rs 630 Cr penalty imposed on DLF
 
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Service Tax exemption on GTA service utilized for Export of Goods - Exporters troubled by lack of foresight of Board

TIOL-DDT 1182
25.08.2009
Tuesday

IN TIOL-DDT 1178 we highlighted the problems faced by the exporters seeking refund of service tax paid on services used by exporters under Notification No. 41/2007-ST dated 06.10.2007 as amended and the lack of clarity on the time limit for claiming refund.

While the Board may take its own sweet time in resolving the issues faced by the exporters, it appears the problems faced by the exporters at the ground level is compounding by the day. The flow of mails from exporters to TIOL explaining the troubles they encounter with the tax authorities in the field continues unabated.

While Notification No. 18/2009-ST dated July 7, 2009 provides that

a) services provided to an exporter in relation to transport of goods by road directly from their place of removal, to an inland container depot, a container freight station, a port or airport, as the case may be, from where the said goods are exported; or

b) services provided to an exporter for transport of goods by road from any container freight station or inland container depot to the port or airport, as the case may be, from where the said goods are exported;

are wholly exempt from the levy of service tax leviable under Sections 66 and 66A of the Finance Act, 1994.

The exporter will have to produce the consignment note in his name to support his claim for exemption.

It is common knowledge that exporters receive empty containers from the ports/container freight terminals to their premises for stuffing of export goods under self sealing mechanism or excise supervision and subsequently cleared to the port for export. The exporters incur expenditure for both inward and outward transportation of containers i.e. from Port/Container Freight Terminals to the exporter's premises and back to Ports. However, it seems that the Board has always been under the impression that all inward transportation would invariably involve receipt of inputs into the factory which is an input service and there is no need to exempt this service for exporters. Since no inputs are received when “empty containers are received, this “INWARD TRANSPORTATION” should also have been included in the exemption Notification.

It appears that the authorities in the field are allowing exemption only for the charges paid for outward transportation of stuffed containers from exporter's premises to the Port of export is exempt from levy of service tax in terms of this notification and not the charges paid for inward transportation of empty containers from the Ports/Container Freight Terminals to exporter's premises.

It is plain common sense that for clearing export goods in containers from exporter's premises to the ICD , CFS , Port etc, they have to invariably receive empty containers from the Ports/Container Freight Terminals and charges are levied on the exporters for both inward and outward movement of containers. Without receiving empty containers at their premises, how can the exporters who utilize containers for clearing bulk goods, export their consignments?

Time and again it was reiterated by the Finance Minister that exports are a priority for this country and here we have officers at top who have no vision of the ground realities and officers in the field whose only job is to either find loopholes in the notifications issued by the Finance Ministry

These are testing times for the economy. While on the one hand it is plagued with several problems like recession, price rise of essential commodities, sluggish demands, job losses etc, on the other, the country's farming community is reeling under severe drought, one of the worst in recent memory, which has a cascading effect on the rest of the economy. In such gloomier times, if exporters who earn foreign exchange for the country are put to hardship then God save this country.

The fundamental principle of taxation vis-à-vis exports is to export only goods and services out of the country and not incidental taxes on such goods or services. It is for this prime reason that such exemption notifications are issued by the Government to benefit exporters.

Hazardous Waste (Management, Handling and Transboundary) Rules, 2008 in respect of import of paper, paper board and paper product wastes – Customs Instructions

Board instructs all the Customs Commissionerates to designate nodal officers at appropriate level not below the rank of Assistant Commissioner / Deputy Commissioner for effective coordination and proper implementation of the Rules for timely interaction with the State / Central Pollution Control Board on matters relating to testing of samples, import or export matters relating to hazardous waste.

CBEC F. No.401 /48/2009- Cus.III Dated 24th August, 2009.

Income Tax – Penalty - The penalty under Section 271 (c) is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability - Supreme Court

The Supreme Court of India judgement in the Dhramendra case was most misunderstood and the Apex Court clarified its judgement in the Rajasthan Spinning & Weaving Mills case. When penalty is intended to be a remedy for loss of revenue, there is no need for mens rea .

The Supreme Court delivered yet another judgement on this issue yesterday and keeping in tune with TIOL traditions we bring you yesterday's judgement today.

See Breaking News.

Their Lordships' Assets - Supreme Court has no supervisory power or control over High Courts – Justice Shylendra

Karnataka High Court Judge, Justice Shylendra in a Newspaper article said,

It is a matter of utmost paradox that the chief justice of the most powerful Supreme Court in the world should be expressing apprehension for the safety and security of the judges of the superior courts in this country by saying that revealing the particulars of assets of the judges and throwing open the information to the public domain may result in harassment to judges and in turn prevent the judges from performing their duties without fear or favour. He has also expressed his fear that this may impair the independence of judges and affect their functioning.

It is equally ironic that the apprehension should have been expressed by the chief justice of the Supreme Court of India, that too in an interview given to a news daily and as the chief justice of the apex court of the country and in the context of the applicability or otherwise of the provisions of the Right to Information Act (RTI Act), a piece of legislation which was commended for legislation by the very Supreme Court in terms of its judgment in Peoples Union for Civil Liberties vs Union of India.

The object of this article is to dispel the most damaging and uncalled for impression created in the minds of the public at large and litigants in particular, that the judges of the superior courts in this country, who enjoy high constitutional protection and immunity, are wary of disclosing their assets or are not prepared to throw open the information relating to the acquisition and holding of their assets to the public domain; that they would rather prefer to keep the information well-guarded and also cover up a possible misdeed or a possible improper acquisition of assets and would like to avoid either scrutiny or an explanation, if one was needed in respect of their asset holdings.

It is fair to say that the views expressed by the Chief Justice of India are not necessarily representative of the views of all the judges of the superior courts of this country. In fact, the Supreme Court of our country has no supervisory power or control over the high courts in the scheme of our Constitution. High courts are independent and function in accordance with the constitutional provisions and in terms of the applicable statutory provisions. The Supreme Court only exercises appellate jurisdiction over the high courts in specified areas as provided for under the Constitution and the laws. The law declared by the Supreme Court is binding on all the courts - it is a constitutional mandate in terms of Article 141 of the Constitution. The Supreme Court has also the most exclusive power in passing such decrees and making such orders as are necessary for doing complete justice between litigants in any cause or matter before it and it is to be enforced throughout the territory of India in the manner prescribed by law. Other than such a constitutional provision and subject to these very constitutional provisions, the high courts function independently.

Hitherto, it is only the opinion of the Chief Justice of India that is expressed in public and the Chief Justice of India is the person, who has been reacting to the doubts and queries of the people as articulated in different sections of the media. No one else from the judiciary has expressed any opinion to the contrary and silence in such a situation obviously amounts to consent or agreement! And yet, the fact of the matter is that judges of the superior courts of this country are not reluctant and hesitant to declare their assets. On the other hand, a majority of them must be ready and willing to do so. There should be no question of any judge either hiding or taking shelter under any non-disclosure provision or under a provision to ensure confidentiality or secrecy of the information. The protection provided to the judges of the superior courts under the Constitution itself is good enough and sufficient to ensure the independence of the judiciary and fearless functioning of the judges. There is absolutely no question of any other person or any other organ creating a sense of apprehension, fear or possible harassment in the minds of the judges by use or misuse of any information that one may come across or might fall into the hands of the litigant public of this country.

An article of this nature, which is otherwise not common or usual for a judge to pen, has become necessary only to convey to the people of this country that the impression created as of now is not necessarily the correct impression; that the judges of the superior courts of this country do not necessarily subscribe to the views and apprehensions expressed hitherto; that they have views and opinions otherwise than what has been conveyed to the public at large so far. The judges have nothing to fear; they have nothing to hide and they have no hesitation to disclose particulars of their assets and even for throwing open the information to the public domain. In fact, it is for the judges of this country to act and provide information even voluntarily. Indeed, I humbly appeal to all my brother and sister judges of the superior courts to do so. No inhibition need deter us from this path.

And the Hon'ble CJI says, “He wants publicity and such a thing is not good for a judge. Judges should not be publicity-crazy."

And Senior Advocate Harish Salve said that he agreed with Justice Kumar's view that judges should publicly declare their assets, but his criticism of the Chief Justice was not in order.

Heights of Democracy?

Jurisprudentiol – Wednesday 's cases

Legal Corner IconCentral Excise

Plastic bhusa used as fuel in Marine Boiler – whether permission from Maharashtra Pollution Control Board was taken or not is immaterial to issue of availing Cenvat Credit under the CCR , 2004 – Revenue appeal Dismissed – CESTAT

Revenue is of the view that this ‘plastic bhusa ' is not covered under the definition of input/fuel or capital goods inasmuch as it does not find a mention in the definition of ‘input' given under rule 2 of the Cenvat Credit Rules, 2004.

Income Tax

Search - Assessee offers to pay tax on excess jewellery to buy peace - additions - CIT(A) and Tribunal find explanation satisfactory but sustain disallowance - Once explanation accepted it is not permissible for Revenue to impose tax liability - it would mean illegal extraction of tax: High Court

SEARCH & Seizure is a routine activity in Income Tax Department. Recovery of jewellery, semi-precious and precious stones and cash are most common items. In may cases, although the assessees do painstakingly explain the source of purchases and cash withdrawals from banks but also make an offer to pay tax on anything declared as ''excess'' by the AO. This is done by the assessee to buy peace and avoid protracted litigation. But there are cases within such instances where the AO prefers not giving quietus to issue and proceed with huge additions. However, the appellate authority and the Tribunal accept the explanation given by the assessee but even then they also sustain the partial disallowance made by the AO on which the assessee has offered to pay tax. Now the question is: Is it permissible for the Revenue to still fasten the assessee with the liability to tax when it has accepted the explanation of the assessee relating to the source of purchase?

Sales Tax

Sales Tax – Two questions referred to High Court – Only one is answered – HC requested to answer the unanswered question: Supreme Court

We set aside the order of the High Court insofar as it relates to the first question of law and remit same to it with a request to answer same referred to by Sales Tax Tribunal, after affording opportunity to both parties, and pass fresh order in accordance with law as expeditiously as possible. To this extent, the impugned order of the High Court is modified.

See our columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

Mail your comments to vijaywrite@taxindiaonline.com


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