NOTIFICATIONS / CIRCULARS / CLARIFICATIONS
Customs
- The Ministry of Finance had earlier
notified a levy of safeguard duty on import of certain products
under Chapter 72 of the Customs Tariff Act, 1975 (CTA), vide
Notification No 1/2016 dated 29 March 2016. The levy is subject to
a condition that the imports are below the minimum import price
(MIP) as notified earlier. The MIP has now been amended and
notified for Chapter 72 of the CTA.
(Ref: Notification No 02/2016 – Customs (SG) dated 4 July 2016) - Anti-dumping duty has been imposed by
the Central Government on the imports of the following products
from countries specified in respective notifications issued during
August 2016:
- polytetrafluoroethylene (PTFE) falling under sub-heading 3904 61;
- opal glassware falling under sub-heading 7013;
- sodium nitrate falling under sub-heading 28341010;
- rubber chemicals, namely (MBTS) dibenzothiazole disulphide, falling under Chapters 29 and 38;
- polyvinyl chloride flex films, falling under Chapter 39;
- hot-rolled flat products of alloy or non-alloy steel, falling under headings 7208, 7211, 7225 or 7226;
- cold-rolled flat products of alloy or non-alloy steel, falling under headings 7209, 7211, 7225 and 7226; and
- caustic Soda, falling under Chapter 28.
- The Central Government in exercise of
its powers has increased the Cost, Insurance and Freight value of
import of consumer electronic items by any person through post or
otherwise for personal use to INR 50,000 from INR 2,000 provided
earlier.
Ref: Notification No 22/2015-2020 dated 12 August 2016) - The Central Government in exercise of
its powers has amended Para 4.38 of the Handbook of Procedures,
thereby permitting clubbing for advance authorisation for Foreign
Trade Policy periods 2009-2014 and 2015-20, where exports and
imports have taken place as per Standard Input Output Norms.
(Ref: Notification No 24/2015-2020 dated 4 August 2016)
Central Excise
- The Central Government has abolished
the requirement of having bonded premises for procuring duty free
goods by an export oriented unit from the domestic tariff
area.
(Ref: Notification No 31/2016-CE dated 24 August 2016) - The Central Government has extended a
concessional rate of excise duty of 2% on aviation turbine fuel
drawn at regional connectivity airports by cargo operators. This
concession is available till 25 August 2019.
(Ref: Notification No 32/2016 dated 26 August 2016) - The Central Government has notified
that rules relating to filing of revised returns under the Central
Excise Rules, 2002 will come into force from 17 August 2016.
(Ref: Notification No 42/2016-CE (NT) dated 11 August 2016)
Service Tax
- The Central Government has notified
abatement of 90% in respect of transport of passengers, with or
without accompanied belongings, by air, embarking from or
terminating in a regional connectivity scheme airport.
(Ref: Notification No 38/2016-ST dated 30 August 2016) - The Central Board of Excise and
Customs (CBEC) has clarified the place of provision of services in
case of freight forwarders. If the freight forwarders act merely as
agents for exporting goods, they would be deemed to be
intermediaries and hence the place of provision of service would be
the location of such freight forwarders. However if the freight
forwarders act as principals and provide the service of
transporting the goods, the place of provision of service will be
deemed to be the destination of the goods, i.e, outside
India.
(Ref: Circular No 197/7/2016-Service Tax dated 12 August 2016) - The CBEC has clarified that exemption
from service tax on service relating to water supply provided to
local authorities/ government will include all conceivable
activities in relation to water supply, such as construction of
tube wells, drilling, laying of pipes, etc. In other words, this
exemption should be given a wide import and not be read in a
restrictive manner.
(Ref: Circular No 199/09/2016-Service Tax dated 22 August 2016)
Value Added Tax
- The State of Bihar has mandated
filing of a declaration in the specified form in respect of import
of any consignment of goods above INR 10,000 into Bihar by an
e-commerce company on behalf of a person other than a registered
dealer.
(Ref: Notification No Bikri Kar/Vividh-43/2011-3055 dated 10 August 2016) - The State of Bihar has enhanced the
base rate of Value Added Tax (VAT) from 5% to 8% and from 14.5% to
15%.
(Ref: Notification No SO. L.G.01-11-/2016/149/Leg dated 12 August 2016) - The Kerala Government has issued a
circular revising the checklist for processing refunds under the
Kerala Value Added Tax Act, 2003. The Circular seeks to amend the
earlier Circular No 9 of 2016 and specify another checklist in
respect of cases where refunds are allowed without examining the
principles of unjust enrichment.
(Ref: Kerala VAT Circular No 14/2016 dated August 20, 2016) - The Government of Delhi has issued a
circular requiring the Assessing Authorities to obtain approval of
the Special Commissioner (Policy) instead of Special
Commissioner-II, stated in earlier communication, before issuing
'C' Forms in advance.
(Ref: Circular No 12 of 2016 dated 08 August 2016) insert correct no. - The State of Maharashtra has issued
another set of frequently asked questions on electronic submission
of applications under the Maharashtra Settlement of Arrears in
Disputes Act, 2016, in addition to the Trade Circular No 20T of
2016 dated 19 July 2016, providing further clarification under the
settlement scheme.
(Ref: Trade Circular No 21T of 2016 dated 24 August 2016) - Pursuant to the introduction of new
automated process for filing of return, the Maharashtra Sales Tax
Department has further issued a circular explaining the procedure
of filing of electronic return under the new automated
system.
(Ref: Trade Circular No 22T of 2016 Dated 26 August 2016 and Trade Circular No 24T of 2016 dated 3 September 2016) - West Bengal VAT authorities have
issued an internal circular requiring its officials to meticulously
read judgments of higher courts such as the Supreme Court, the
Calcutta High Court and the West Bengal Tax Tribunal, for better
application of decisions. The circular further states that
implementation of such orders must be in letter and in spirit and
discourages any room for personal views or opinion.
(Ref: Circular No 761/CT/PRO/3C/PRO/2012 dated 2 September, 2016)
RECENT CASE LAW
Central Excise
- Madras High Court denies 'double
benefits' to exporter
In this case, the assessee had exported certain goods under claim of rebate under central excise and had also claimed drawback under customs law. The department sought to deny the same as it would amount to a double benefit to the assessee for the same export.
The assessee relied upon the decision of the Supreme Court (SC) in the matter of Spentex Industries Limited, wherein it was held that claims for rebate under central excise could be allowed simultaneously for both inputs and the final export products. Following the same logic, it was prayed that concurrent benefits of rebate and drawback should also be allowed.
The Madras High Court (Madras HC) rejected the above submission by the assessee, holding that the said judgment of the Supreme Court was in relation to interpretation of a solitary provision of law Rule 18 of the Central Excise Rules, 2002 whereas the present case involved two different set of rules under two different statutes. The Madras HC noted that there was a clear restriction under the rules of drawback that the amount related to a rebate claim was to be denied at the time of sanctioning drawback. According to the Madras HC, this proposition had not been present before the SC.
Finally, the writ petition filed by the assessee was dismissed.
(Ref: Raghav Industries Limited v Union of India) - Loading of software on a device does
not amount to manufacture under Central Excise
In this case, the assessee was engaged in the activity of loading business software onto imported cashless currency transmitting devices. Such software was in addition to the basic software already embedded into the machine.
The question before the Authority for Advance Rulings (AAR) was whether such activity of loading software amounts to manufacture under the Central Excise Act, 1944?
The AAR held that the machine in the form in which it is imported, post uploading of software, has the same name, character and use as it did prior to uploading the software. The usage and identity of the machine on loading of software remain the same. The software loading activity only provides further additional functions. Therefore, loading of business software would not amount to manufacture under Central Excise Law.
The AAR allowed the application filed by the assessee.
(Ref: In re Nucleus Software Exports Limited) - Tripura High Court invokes doctrine
of promissory estoppel; extends benefit
The North Eastern Industrial Policy (NEIP) was introduced on 24 December 1997 to provide industrial stimulus in the North Eastern Region, by way of fiscal incentives for a period of ten years. Under central excise law, fiscal incentive was provided by Notification No 32/1999-CE dated 8 July 1999, which granted exemption from excise duty.
The NEIP was discontinued on 1 April 2007 and replaced by the North East Industrial and Investment Promotion Policy (NEIIPP). The NEIIPP provided that the concessions announced under NEIP would cease to operate with effect from 1 April 2007. But where industrial units have commenced commercial production before 31 March 2007, benefits under NEIP for a period of ten years with effect from 1 April 2007 will continue.
By Notification No 11/2007-CE, the notification 8/2004-CE was amended to provide that exemption vide the original notification shall not be available to goods cleared after 1 March 2007.
The assessee challenged Notification No 11/2007-CE inasmuch as its units had been set up and operated for commercial production before Notification No 11/2007-CE was issued. According to the assessee, the exemption granted by the earlier notification had been prematurely withdrawn before the expiry of ten years, as promised in the NEIP.
The Tripura High Court (Tripura HC) invoked the principle of promissory estoppel and stated that assessee would continue to get the benefit in terms of the promise extended. The Tripura HC held that the representation or the promise under the NEIP was unequivocal and the assessee had acted on such promise or assurance till expiry of the promised period.
(Ref: Dharampal Premchand Limited v Union of India)
Service Tax
- Delhi High Court quashes challenge to
service tax in relation to alcoholic liquor
The issue in this case was liability to impose service tax on persons who manufacture alcoholic liquor for human consumption on job work basis, which was brought into effect from 1 June 2015.
The principle contention of the petitioner(s) was that the Parliament does not have the legislative competence to impose this tax since the activity of manufacture of alcoholic liquor for consumption, whether for oneself or for another person, lies exclusively within the domain of the State Legislature under Entry 51 of List II of Schedule VII to the Constitution of India, 1950 (Constitution). Per contra, the service tax authorities argued that that service tax is not levied on the manufacture of alcohol but on the service aspect of the contract of manufacturing of alcohol on behalf of the principal manufacturer/brand owner.
The Delhi High Court (Delhi HC) applied the doctrine of 'pith and substance.' It noted that while Entry 51 of List II envisages manufacture of alcoholic liquor for consumption, it does not contemplate a situation of manufacture of alcoholic liquor by one person or entity for another. Importantly, the taxable event is the manufacture and it is amenable to state excise duty. However, manufacture for another is in pith and substance a service performed by one for another and cannot therefore fall within the ambit of Entry 51 of List II. This same conclusion was also reached by the Delhi HC upon application of the aspect doctrine.
Finally, the HC undertook a detailed analysis of various precedents and dismissed the challenge to the validity of liability to service tax.
(Ref: Carlsberg India Private Limited v Union of India) - Delhi High Court sets aside challenge
to validity of service tax on restaurant services. However, holds
service tax on short-term accommodation unconstitutional
In this case, the assessee challenged the constitutional validity of:
- Section 65 (105) (zzzzv) of the Finance Act 1994 (FA) whereby the provision to any person by a restaurant, by having the facility of air-conditioning in any part of its establishment serving food or beverage, including alcoholic beverages or both, in its premises has been made amenable to service tax.
- Section 65 (105) (zzzzw) of the FA whereby the provision of accommodation by a hotel, inn, guest house, club or camp-site for a continuous period of less than three months has been made amenable to service tax.
- provision of food and beverages in a restaurant, even where it forms part of a hotel which provides lodging and meals is covered entirely by Entry 54 of List II read with Article 366 (29A)(f) and, therefore, is a sale and is within the competence of the State legislature only.
- Entry 62 of List II provides that states are empowered to impose tax on luxuries including taxes on entertainment, amusement, betting and gambling. In fact state legislatures have enacted statutes in terms of which luxury tax is levied on hotel accommodation. It is submitted that the entire amount paid on provision of accommodation by hotels is also a matter falling exclusively in List II.
- In the context of restaurant services, there is no overlapping as such between Entry 54 of List II which relates to tax on sale and purchase of goods and has to be read with Article 366 Clause 29A(f) and Entry 97 of List I which covers a tax on the service portion of such contract. The discernment of the service portion of a composite restaurant contract, different from the portion pertaining to supply of goods, is legal from the judicially adopted aspect doctrine. Per the same, what is taxed is the service component, which is completely within the legislative domain of the Parliament.
- In the context of accommodation, the Delhi HC noted that what is defined under the Delhi Tax on Luxuries Act, 1996 is an identical service of providing accommodation in a hotel. In other words, the very same taxable event of providing service by way of accommodation in a hotel etc is the subject matter of both levies viz., luxury tax levied by the state and service tax levied by the union. The Delhi HC concluded by holding that such short-term accommodation would not be liable to service tax.
(Ref: Federation of Hotels and Restaurants Association of India v Union of India)
Value Added Tax
- Bombay High Court (Bombay HC) lays
down principles to differentiate between a "permissive
use" which is classifiable as a service and "transfer of
right to use" which is classifiable as a deemed sale
The Bombay HC in the present case has dealt with two writ petitions: first, by Mahyco Monsanto Biotech (India) Private Limited (Monsanto) which was engaged in supply of hybrid cotton seed impregnated with proprietary protective technology, and second, by Subway Systems India Private Limited (Subway) in respect of VAT on franchise agreement.
Monsanto argued that the sub-licence agreement entered with third parties would be regarded as 'permissive use' rather than 'the transfer of right to use' under Article 366(29A) of the Constitution and would be subject to service tax. It further argued that the transaction is a single composite transaction and cannot be taxed as sale and service both since both taxes are mutually exclusive. The Bombay HC observed that in the present case, Monsanto would be divested of the portion of technology embedded in the seeds and the 'effective control' would entirely vest in the sub-licensee. It further stated that such a transaction would clearly satisfy the 'twin test' propounded in the case of BSNL: transfer to the exclusion of the transferor, i.e., not merely a license to use the goods, and restraint upon the owner to again transfer the same rights to others. Based on the above, the Bombay HC held that the transfer of technology by way of seed would be regarded as transfer of right to use and subject to VAT.
However, the Bombay HC took a completely different view in the case of Subway, which was different on facts than Monsanto and involved transfer of franchise. Subway submitted that franchise agreement is not one for sale / transfer of right to use but merely permits the franchisee to display certain marks and to use certain technologies and methods in preparing the salads and sandwiches for sale, therefore subject only to service tax. The Bombay HC observed that in this case, there are set terms provided in the agreement and any breach thereof would result in termination. It further observed that the right of transferability is extremely restricted and is under Subway's control throughout.
The Bombay HC stated that the mere inclusion of 'franchises' under the Maharashtra Value Added Tax Act, 2002 would not automatically make all franchise agreements liable to sales tax and the real nature of the transaction and the actual intention of the parties must be looked into.
(Ref: Mahyco Monsanto Biotech India Private Limited. v Union of India) - SC upheld the reversal of Input Tax
Credit (ITC) when goods are sold below the purchase price
In this case, the SC dealt with the constitutional validity of Section 19(20) of Tamil Nadu VAT Act, 2006 which mandated reversal of excess input tax credit upon sale of goods at price lesser than purchase price. The said Section was introduced in 2013 and was made applicable retrospectively with effect from 2007. It was argued before the SC that the said provisions are confiscatory in nature as well as unreasonable and arbitrary, hence, violative of Article 14 and 19(1)(g) of the Constitution. It was further argued that the said provisions are repugnant to the general scheme of charging provisions of VAT Act. The SC observed that input tax credit is a form of concession provided by the Legislature subject to certain conditions. When concession is given by a statute, the legislature has power to make provision stating the form and manner in which such concession is to be allowed. The main purpose of Section 19(20) is to protect the Revenue Department against clandestine transactions resulting in evasion of tax. Thus the same is not violative of the Constitution. As regards the retrospective application of the amendment, the SC observed the parameters laid down in the case of Vatika Township Private Limited, regarding testing the validity of retrospective operation of fiscal laws. It observed that Section 19(20) is a new provision introduced for determining input tax in specific situations, and thus its retrospective application cannot be permitted.
(Ref: Jayam & Company v Assistant Commissioner & Another)
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