No. 2(103)/2014-CERT-In Government of India Ministry of Communication & IT Department of Electronics and Information Technology Electronics Niketan, New Delhi Dated 27.11.2014 OFFICE MEMORANDUM Subject: Advisory for use of email and web services in respect of compliance to the order of High Court of Delhi under Public Records Act, 1993 Internet has given the flexibility […]
Govt. dept should use Either NIC provided or own e-mail & web services
No. 2(103)/2014-CERT-In
Government of India
Ministry of Communication & IT
Department of Electronics and Information Technology
Government of India
Ministry of Communication & IT
Department of Electronics and Information Technology
Electronics Niketan,
New Delhi
Dated 27.11.2014
New Delhi
Dated 27.11.2014
OFFICE MEMORANDUM
Subject: Advisory for use of email and web services in respect of compliance to the order of High Court of Delhi under Public Records Act, 1993
Internet has given the flexibility of accessing information from anywhere, any time through variety of techniques and technology be it computer system, mobile phone or Tablets. The email and the web services have emerged today as one of the most essential mode of communication between people to people, people to organizations and organizations to organizations. At the same time security risks have also increased while accessing information over the Internet through email or web as some of the adversaries have launched targeted attacks to steal or damage the information for different purposes and interests.
2. There are number of organizations in the country as well as outside the country providing email and web services to any person irrespective of the location. The National Informatics Centre (NIC) under Department of Electronics and Information Technology (DeitY) has hosted email and web hosting services in the country for use by employees of Government, be it Central or State Government, for government related communications and disseminating the information within government as well as outside the government. NIC has been quite liberal in creating the email and web accounts for Government employees both in the Central and State governments. They are also regularly engaged in strengthening the infrastructure both from the point of view of faster access and security.
3. It has been observed that a number of officials in the Ministries/Departments in the central and state government are using the private mail services particularly hosted and operated from outside India for official communications. Such official communications are government and also the public records. It is to mention that data pertaining to such emails and web services is stored by these service providers outside India and is fully under their control. At the time of any security breach incident or data loss it becomes very difficult to obtain data from those service providers apart from the possibility of leakage of information as they are controlled by the service providers outside the country.
4. The Section 4 of the Public Records Act, 1993 specifically prohibits against taking of public records out of India. The section 4 states as follows:
"Prohibition against taking of public records out of India – No person shall take or cause to be take out of India any public records without the prior approval of the central Government:
Provided that no such prior approval shall be required if any public records are taken or sent out of India for any official purpose."
5. The High Court of Delhi in a writ petition W.P.(C) 3672/2012 K. N. Govindacharya versus Union of India has been particularly concerned with the official communications made through email and web using services provided by and from service providers outside the country.
6. Keeping in view the observations of the High Court of Delhi, the Public Records Act, 1993 and Data Privacy and the possibility of misusing/leaking of data exchanged using the email communications and web services provided by service providers outside the country, it is requested that the officials in your Ministry as well as organizations under the administrative control of the Ministry may be requested that:
All the Ministries/Departments of Central and State Governments should either use mail services provided by National Informatics Centre (NIC) or they should use their own e-mail and web services, being fully controlled by them and hosted in India for official communication. CERT-In security guidelines/advisories as issued time to time should be followed.
This issues with the approval of Secretary, DeitY
(Gulshan Rair)
Director General, CERT-In, DeitY
Phone: 011-24368544
Director General, CERT-In, DeitY
Phone: 011-24368544
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Govt. dept should use Either NIC provided or own e-mail ... No. 2(103)/2014-CERT-In Government of India Ministry of Communication & IT Department of Electronics and Information Technology Electronics Nike... | |||||||
Internet Computer Centre Vs. CCE, Lucknow [2014 (12) TMI 663 - CESTAT NEW DELHI] In the instant case, Internet Computer Centre (the Appellant) availed the benefit of Small Scale Exemption under erstwhile Notification No. 6/2005-ST dated March 1, 2005 (SSI Notification) which was denied by the Lower Authorities on the ground that the services rendered […]
If there was no malafide for the purpose of penalty, there cannot be any malafide for the purpose of limitation also
Internet Computer Centre Vs. CCE, Lucknow [2014 (12) TMI 663 – CESTAT NEW DELHI]
In the instant case, Internet Computer Centre (the Appellant) availed the benefit of Small Scale Exemption under erstwhile Notification No. 6/2005-ST dated March 1, 2005 (SSI Notification) which was denied by the Lower Authorities on the ground that the services rendered by the Appellant are branded services and the same is excluded from the applicability of the SSI Notification. Therefore, the Lower Authorities confirmed the demand of Service tax of Rs. 98,064/- and imposed penalty of Rs. 50,000/- under Section 76 of the Finance Act, 1994 (the Finance Act) on the Appellant by invoking extended period of limitation.
On appeal being filed to the Commissioner (Appeals), the Commissioner (Appeals) set aside the penalty imposed upon the Appellant on the ground that the Appellant was under the bonafide belief that they are entitled to the benefit of the SSI Notification and that on being pointed out by the Department, the Appellant paid the due tax and interest before issuance of Show Cause Notice. Thus, there was no malafide intent on the part of the Appellant and penal action is not justifiable. However, the demand of Service tax was confirmed against the Appellant.
Being aggrieved, the Appellant filed an appeal before the Hon'ble CESTAT, Delhi on the ground of limitation.
The Hon'ble CESTAT, Delhi held that if there was no malafide for the purpose of penalty, there cannot be any malafide for the purpose of limitation also. Accordingly, the matter was decided in favour of the Appellant and the demand being barred by limitation was set aside.
CESTAT, Delhi held that detection of short payment by the officers prior to filing of ST-3 is a premature detection. The Appellant has given a plausible explanation of short payment by submitting that inasmuch as entries were not made in the computers and the data was yet to be entered, there was no mala fide on their part not to pay Service tax
Malafide cannot be attributed to the Assessee on detection of short payment by the Department prior to filing of ST-3
Pectjem Classes Vs. Commissioner of Central Excise, Kanpur [2014 (12) TMI 590 – CESTAT NEW DELHI]
Pectjem Classes (the Appellant) is a service provider under the category of Commercial Training and Coaching services. Their premises was visited by the officers on October 14, 2008 and from the records maintained by the Appellant, it was found that for the period May 2008 to September 2008, they have deposited less Service tax to the tune of Rs. 2,96,480/-.
Thus, proceedings were initiated against the Appellant for recovery of Service tax along with interest and imposition of penalties under various Sections of the Finance Act, 1994 (the Finance Act). Being aggrieved, the Appellant preferred an appeal before the Hon'ble CESTAT, Delhi contesting the amount of penalties.
The Appellant contended that the period involved is from May 2008 to September 2008 and the ST-3 for the said period was yet to be filed by October 25, 2008. Inasmuch as ST-3 return was yet to be filed, the Appellant would have reconciled the entire figures at the time of filing of return and would have deposited the Service tax accordingly. Hence, the Appellant prayed for setting aside the penalties.
The Hon'ble CESTAT, Delhi held that detection of short payment by the officers prior to filing of ST-3 is a premature detection. The Appellant has given a plausible explanation of short payment by submitting that inasmuch as entries were not made in the computers and the data was yet to be entered, there was no mala fide on their part not to pay Service tax. It was further held when that the entire case of the Revenue is based upon the scrutiny of the statutory records maintained by the Appellant, the Appellant was not in a position to evade any Service tax. Hence, the penalties imposed upon the Appellant were set aside while the demand of Service tax was confirmed along with interest.
Board's Circulars have prospective effect only and not retrospective effect
Uttam Galva Steels Pvt. Ltd. Vs. CCE Raigad [2014 (12) TMI 619–Government of India]
Uttam Galva Steels Pvt. Ltd. (the Appellant) was engaged in the manufacturing activity and the final products which were cleared on payment of duty included the products namely 'H.R. Pickled Oils' (Pickled Oils) and 'HR Pickled and oiled coils' (Pickled Coils). Pickled Oils and Pickled Coils were cleared for home consumption as well as exported under Rebate claim/ Bond.
The Appellant had filed various Rebate claims during the period of December 2009 to April 2010 involving an amount of Rs. 3,18,72.034/- but inadvertently mentioned the Tariff Classification of Pickled Coils as 72083940 in the Rebate claims which was similar to Tariff Classification of H.R. Coils declared as input in the Appellant's application for Central Excise Registration.
However, the Appellant clarified that the inputs i.e. H. R. Coils received in the factory are subjected to the process of slitting, pickling, oiling and trimming and explained the processes involved in detail. Accordingly, it was contended that the process undertaken by the Appellant amounts to manufacture in terms of Sub Heading Note No. 3 of Chapter 72 of the Central Excise Tariff Act, 1985 which provides that the process of hardening and tempering, in respect of flat rolled products, amounts to 'manufacture'.
The Department took a view that since the Appellant did not reveal that the process of pickling and oiling amounts to hardening and tempering, therefore the process of pickling and oiling carried out by the Appellant does not amount to manufacture.
Thereafter, the Adjudicating Authority rejected the entire Rebate Claim on the ground that process undertaken by the Appellant does not amount to manufacture in terms of Circular No. 927/17/2010-CX dated June 24, 2010wherein it was clarified that 'mere undertaking the process of oiling and pickling as preparatory steps do not amount to manufacture'. Later on, the Commissioner (Appeals) also upheld the same.
Being aggrieved, the Appellant filed a Revision Application before the Central Government under Section 35EE of Central Excise Act, 1944, wherein it was held that:
(i) The Apex Court in the case of M. Bags Manufacturer Vs. Collector of Central Excise [1997(94) ELT 3(S.C.)] and various subsequent judgements had stipulated that the Board's circular can have only prospective effect which is evidently the law of the land. Hence, rejection of the Rebate claims on the sole ground that the process does not amounts to manufacture by applying the Board's Circular retrospectively i.e. prior to June 24, 2010 cannot be held sustainable and hence, liable to be set aside.
(ii) In Ajinkya Enterprises, Pune, it has been held that once the duty on final product has been accepted by the Department, the Cenvat credit availed need not be reversed even if the activity does not amount to manufacture.
In view of above findings, the Government set aside the Orders of the Lower Authorities and allowed Revision application.
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