In the matters of Foreign Trade Policy, DGFT Clarification will be binding on the Customs as against CBEC Clarification
A.G. Enterprise Vs. Commissioner of Customs (Preventive), Jamnagar [(2014) 51 taxmann.com 71 (Ahmedabad – CESTAT)]
A.G. Enterprise (the Appellant) are ship breakers, who imported old and used ships for purpose of breaking up. At the time of ship breaking, the ships/ vessels contained Marine Gas Oil (HSD) [MGO (HSD)] in the tanks of the vessel in addition to the MGO (HSD) lying in the tank of the ship engine. In terms of the Agreements, buyers of the ships/ vessels also take over the oil bunkers, unused lubricants and unused stores and provisions at the port of delivery of the ships/ vessels without any extra payments. Hence, the commercial invoice showing the purchase of the ships/ vessels does not disclose any extra price for the MGO (HSD) etc., so acquired by the Appellant. The Appellant paid the applicable duty on MGO (HSD).
The Revenue contended that MGO (HSD) is a canalized item as per ITC (HS) 2012, Schedule I of import policy and HSD is subject to import only through IOC subject to Para 2.11 of the Foreign Trade Policy (FTP) and imports of such MGO (HSD) is restricted and hence will be classified accordingly.
Thereafter, both the Lower Authorities held that the Appellant has contravened the provisions of Para 2.11 of the FTP, thus ordered confiscation of MGO (HSD) under Section 111(d)of the Customs Act, 1962 (the Customs Act) read with CBEC clarification issued under F. No. 528/74/2012-GTO(TV) dated January 22, 2013 (CBEC Clarification).
Being aggrieved, the Appellant preferred an appeal before the Hon'ble CESTAT, Ahmedabad wherein the Appellant contented that in terms of EXIM Policy Heading 27 10 1940 and 20 10 19030, LDO and HDO are canalized items to be imported only through State Trading Agencies and vessels and other floating structures for breaking up are classified under EXIM code 8908 00 00 of the same EXIM Policy, import of which is free.
Further, MGO (HSD) is not separately imported but is received along with the ships/ vessels as ship stores, along with other ship stores and no extra price is paid for such MGO (HSD), hence as per DGFT Clarification vide letter F.No. IPC/4/5(684)/97/82/PC-2(A) dated June 26, 2013 ("DGFT Clarification") surplus fuel stored in the fuel tanks (whether inside or outside the engine room) form an integral part of the vessels machinery and is classifiable under EXIM code 89.08 of the EXIM Policy.
The Hon'ble Tribunal, Ahmedabad relying on the decision made in the case of Cine Land Vs. Commissioner of Customs [1999 (114) ELT 653 (Tri. – Chennai)] and after observing that in terms Para 2.3 of FTP if any doubt arises in respect of classification of any item in ITC (HS) or HPBv1 or HBPv2 or Schedule of DEPB Rates, it should be referred to DGFT whose decision shall be final and binding, held that:
- In the matters of FTP, DGFT Clarification will be binding on theCustoms as against CBEC Clarification;
- As per DGFT Clarification, surplus fuel stored in fuel tanks of the ships/ vessels imported for breaking up should be considered as an integral part of the ships/ vessels and thus classifiable under ITC(HS) 89.08 along with the main vessel, import of which is free;
- Hence, MGO (HSD) cannot be held as liable for confiscation under Section 111(d) of the Customs Act and no penalties are imposable upon the Appellant.
IT is said that:
For every problem, there is one solution that issimple, neat, and wrong.
The more directives you issue to solve a problem, the worse it gets.
There is a solution to every problem; the only difficulty is finding it.
There is no problem, however complicated, which, when you look at it in the right way, did not become still more complicated.
By using your intelligence you can sometimes make your problems twice as complicated.
The issue is - Audit of Service Tax assessees by the departmental officers or CAG's Audit Party or Chartered Accountants/Cost accountants. Rule 5A(2) of the Service Tax Rules, mandates the assessees to provide records to the Departmental officers/CAG Audit. In recent times, this provision has been challenged in several High Courts and several High Courts have granted interim relief by barring audit.
It was only on Friday that DDT mentioned about the latest decision of the Gujarat High Court preventing the CAG from conducting the audit of the Service Tax assessees. (DDT 2490)
As is well known the Delhi High Court in the case of Travelite (India) - 2014-TIOL-1304-HC-DEL-ST held that there is only provision in Chapter V of the Finance Act on scrutiny and audit of records of the assessee and that is Section 72A of the Finance Act, 1994 according to which the audit can be conducted only by Chartered Accountants or Cost Accountants in the circumstances specified therein.
The CBEC seems to have reconciled to the fact that there is some lacuna in the law and in a Circular No. 986/10/2014-CX., dated, October 9, 2014 clarified that the Delhi High Court order quashed the Service Tax rule but it did not deal with the issue of audit in Central Excise at all. So, the Board tacitly admitted that because of the Delhi High Court order Service Tax audit cannot be done. But in spite of Rule 5A(2) being quashed by the Delhi High Court, Commissionerates and CAG's Audit continued to do their audit. And the Government also did not keep quiet. The Delhi High Court decision is challenged in the Supreme Court.
And suddenly, in a flash of wisdom, the Board has amended Rule 5A(2). The rule as it existed prior to the amendment and after amendment is tabulated below. The portions marked in red are deleted from the existing rule and the portions marked in green are added.
The Rule before amendment | The Rule after amendment |
(2) Every assessee shall, on demand, make available to the officer authorised under sub-rule(1) or the audit party deputed by thePrincipal Commissioner or Commissioner or the Comptroller and Auditor General of Indiawithin a reasonable time not exceeding fifteen working days from the day when such demand is made, or such further period as may be allowed by such officer or the audit party, as the case may be,-
for the scrutiny of the officer or audit party, as the case may be. | (2) Every assessee, shall, on demand make available to the officer empowered under sub-rule (1) or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India, or a cost accountant or chartered accountant nominated under section 72A of the Finance Act, 1994,- (i) the records maintained or prepared by him in terms of sub-rule (2) of rule 5; (ii) the cost audit reports, if any, under section 148 of the Companies Act, 2013 (18 of 2013); and (iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 (43 of 1961), for the scrutiny of the officer or the audit party, or the cost accountant or chartered accountant, within the time limit specified by the said officer or the audit party or the cost accountant or chartered accountant, as the case may be. |
Does this solve the problem?
Rule 5A was silent about audit by the CAs and Cost Accountants. May be the Board thought at least to include the CAs and Cost Accountants in Rule 5A before any assessee could get the audit notice under Section 72A quashed on this ground.
When the High Court says that Rule 5A(2) itself is not valid, will adding another set of auditors to the present set of illegal auditors, solve the problem? Until the Delhi High Court order is stayed or set aside, this Rule 5A(2) does not exist and the Government cannot amend a rule that does not exist.
And they forgot the Principal Commissioner in the amendment. A retrospective amendment in the making in the 2015 budget?
Please see more details in our ST se GST tak column.
Please also see:
1. Should AG's Audit be allowed to visit factories and Premises of Service Tax Assessees? (DDT 1298)2. AG's Audit Visit to Factories and Premises of Assessees? (DDT 1776)5. Karnataka High Court grants Interim Stay against CAG Audit of Service Tax Assessee - DDT 2103 - 13.05.20136. Audit under Service Tax only by Chartered Accountants - not by officers of Department - High Court - DDT 2283 - 30.01.20147. Even if Service Tax Audit cannot be done, there is no hurdle for Central Excise Audit - CBEC - DDT 2453 10.10.2014
Letting out of property with various amenities is taxable as income from house property and not business income
IT: Rental income from premises leased out to tenants registered under Software Technology Parks Scheme with amenities/services by way of standby power (DG set), air conditioning water, etc., was assessable as income from house property and not as business income
No Municipal / BMC Permission Required For use of Part of Premises for Professional Practice
The Municipal Corporation for Greater Mumbai V/s. Dr. (Mrs.) Rekha S. Naik & Anr. (Bombay High Court), First Appeal No. 424 of 2012, Dated : September 3, 2013 The present appellant issued notice under section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 on the ground that in the residential premises, the respondent plaintiff is running a medical dispensary without permission as such should discontinue the said unauthorised use i.e. medical dispensary. The respondent plaintiff filed a suit before the trial court challenging the said notice seeking relief of declaration that the act of defendant No.1 objecting the use of the part of the premises for running medical dispensary is illegal, null and void and also sought injunction restraining the defendant from executing the same. The trial court decreed the suit. Aggrieved thereby, the present appeal.
Mrs. Joglekar, the learned counsel for the appellant submits that the plaintiff, in a residential premises, is running her medical dispensary and the same is not permissible without prior permission. According to the learned counsel, though Regulation 51(iv) of the Development Control Regulations, 1991 (D. C. Regulations) permits the incidental use of residential premises for running a medical dispensary, still the same has to be after prior permission of the appellant. According to the learned counsel, the court below has not properly appreciated the provision in this regard.
Mr. Dhakephalkar, the learned senior counsel for the respondent submits that there is no provision which requires permission of the appellant to run a medical dispensary in a part of the residential premises. The plaintiff is running her medical dispensary in one small room and the rest of the part of the room is being used as a residential premises. The said room is not exceeding 180 sq.ft. Indoor patients are not admitted.
It is not in dispute that Flat No.A2 is the residential premise of the plaintiff (i.e. in R1 zone). The only dispute is about the plaintiff running her medical dispensary in one room in the said flat being used for residential purpose. The court, on appreciation of evidence has
found that whole flat is used for residential purpose and only a small area less than 30 sq. mtr. is being used for running medical dispensary.
It is also not the case of the corporation that plaintiffs admit any indoor patients.
found that whole flat is used for residential purpose and only a small area less than 30 sq. mtr. is being used for running medical dispensary.
It is also not the case of the corporation that plaintiffs admit any indoor patients.
Rule 51(iv) of the D.C. Regulations reads thus:
51. Purely Residential Zone (R1 Zone) – Ancillary uses permitted : Apart from residential use, the following uses and specified ancillary uses to the extent of 50 per cent of the floor space of the principal use shall be permitted in buildings, premises or plots in the purely residential zone:
(i) ………………….
(ii) ………………….
(iii) ………………….
(iv) "Professional Offices and studies of a resident of the premises and incidental to such residential use, or medical and dental practitioners dispensaries or clinics of a resident of the building with only out patient treatment facilities without any indoor work, each not occupying a floor area exceeding 30 sq.m."
The learned counsel for the appellant could not point out any provision under which the plaintiff is required to seek prior permission for running medical dispensary with only outpatient treatment facilities without any indoor work in her residential flat, more particularly, when the whole flat is being used for residential purpose and medical dispensary is being run in an area less than 30 sq.mtr.
In absence of any such provision, requiring permission of Municipal Corporation for Medical Practitioner's dispensary with only
outpatient treatment facility in an area of less than 30 sq. mtr. in residential premises, it would not be within the jurisdiction of the appellant to issue such notice. The court below has properly considered the said aspect of the matter and has rightly decreed the suit.
outpatient treatment facility in an area of less than 30 sq. mtr. in residential premises, it would not be within the jurisdiction of the appellant to issue such notice. The court below has properly considered the said aspect of the matter and has rightly decreed the suit.
In the light of the above, appeal is dismissed, however, with no order as to costs.
In view of dismissal of the appeal, nothing survives in the civil application. Hence, the same stands dismissed.
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