India: Indirect Tax Newsletter - June 2016

NOTIFICATIONS / CIRCULARS / CLARIFICATIONS

Customs

  • Anti-dumping duty has been imposed / extended by the Central Government on the imports of following products from countries specified in respective notifications issued in June 2016:

    • Polytetrafluoroethylene/ PTFE (tariff item 39.04 61 00)
    • Pentaerythritol (sub-heading 29.05 42)
    • Poly Vinyl Chloride Paste Resin (heading 39.04)
    (Ref: Notification No 23/2016-Cus (ADD) dated 6 June 2016)
  • Directorate General of Foreign Trade has amended the Foreign Trade Policy for import of aircrafts and helicopters. As per this amended provision, persons permitted to operate air transport services by Civil Aviation Ministry are exempted from obtaining license for import of aircrafts and helicopters.

    (Ref: Notification No 10/2015-2020 dated 20 June 2016)
  • Directorate General of Foreign Trade has amended the provisions of Handbook of Procedures of FTP 2015-20 relating to re-validation of advance authorizations. Revalidation henceforth will be allowed only if the authorization holder has not obtained a revalidation under Para 4.41 of the Handbook of Procedures 2015-2020.

    (Ref: Public Notice No 17/2015-2020 dated 8 June 2016)
  • Central Government has included Republic of Togo and Republic of Chad as least developed countries eligible for taking benefit under the Customs Tariff (Determination of Origin of Products under the Duty Free Tariff Preference Scheme for Least Developed Countries) Rules 2008.

    (Ref: Notification No 39/2016-Cus dated 21 June 2016)
  • Central Government has further reduced duty rates for imports from Malaysia under the India Malaysia Comprehensive Economic Co-operation effective from 30 June 2016.

    (Ref: Notification No 40/2016-Cus dated 21 June 2016)
  • The Central Government has increased the rate of 'All Industry Rates of Drawback' on export of articles of jewellery made of gold or silver, with additional conditions. Henceforth, no drawback will be available if CENVAT facility has been used on inputs/ input services, or benefit has been availed in terms of Rule 18 (rebate) or Rule 19 (export under bond) of the Central Excise Rules 2002.

    (Ref: Notification No 90/2016-Cus (NT) dated 24 June 2016)
  • The Central Board of Excise and Customs has specified that henceforth there would not be a requirement of interest payment prior to allowing extensions of warehousing period.

    (Ref: Circular No 23/2016-Cus dated 1 June 2016)
  • The Central Board of Excise and Customs has issued following clarifications with respect to bonded warehouses:

    • solvency certificate for setting up will be for an amount equivalent to the maximum amount of duty involved on the goods proposed to be stored;
    • records, returns and forms prescribed in relation to goods received, stored, handled and removed;
    • application form prescribed for setting up a bonded warehouse, containing details of the layout, security processes and storage facilities amongst others.
    (Ref: Circular No 24, 25, 26 /2016-Cus dated June 2016)
  • Central Board of Excise and Customs has overhauled the procedure required to be followed by the nominated agencies importing gold/ silver/ platinum under the scheme for 'Export against Supply by Nominated Agencies'.

    (Ref: Circular No 27/2016-Cus dated 10 June 2016)
  • Central Board of Excise and Customs has streamlined the Single Window Interface for Facilitating Trade (SWIFT) procedure for import of drugs and cosmetics. As per the latest clarification, items listed as chemicals (and not drugs) will not require prior approval of the ADC. It has also clarified that items which are not pharmaceutical grade or items which do not contain any Active Pharmaceutical Ingredients (API) need not be referred to the ADC for NOC. Further, if product sample from a particular batch has been tested for giving NOC by ADC, then product sample shall not be drawn again for subsequent consignments/items pertaining to the same batch.

    (Ref: Circular No 28/2016-Cus dated 14 June 2016)

Excise

  • The Central Government has notified the Indirect Tax Dispute Resolution Scheme Rules, 2016 with effect from 1 June 2016. Under this scheme, tax payers can apply for settlement of disputes pending before Commissioner (Appeals) as on 1 March 2016 on payment of tax dues along with interest and penalty.

    (Ref: Notification No 29/2016-CE (NT) dated 31 May 2016)
  • The Central Board of Excise and Customs has clarified the levy of excise duty chargeable on readymade garments or made up articles of textiles which are sold by a retail stores. Explaining the scope of 'manufacturing', it clarified that merely because the retailer outlets selling readymade garments or made ups have a name, the readymade garments sold from such outlets cannot be liable to excise duty.

    (Ref: Circular No 1031/19/2016-CX dated 14 June 2016)
  • In order to further increase ease of doing business in India, the Central Government has specified that an importer, as an option, need not take a separate registration as a 'first stage dealer' Similarly a First Stage Dealer also need not take a separate registration as an 'Importer'.

    (Ref: Notification No 30/2016-CE (NT) dated 28 June 2016 read with Circular No 1032/20/2016-CX dated 28 June 2016)

Service Tax

  • Representational services by a senior advocate before any court, tribunal or authority, directly or indirectly, to any business entity located in a taxable territory, including a situation where the contract for provision of such service has been entered through another advocate or a firm of advocates, shall be chargeable on reverse charge basis. It has also been clarified that a business entity which is being represented shall be the recipient of services.

    (Ref: Notification No 34 – 2016-ST dated 6 June 2016)
  • Krishi Kalyan Cess (KKC) on all taxable services in respect of which an invoice for providing such service has been issued on or before the 31 May 2016 is exempted from the levy of service tax subject to condition that the provision of service has been completed on or before the 31 May 2016.

    (Ref: Notification No 35 – 2016-ST dated 23 June 2016)

Value Added Tax

  • In Delhi, the dealers under composition scheme for restaurants/halwais have to pay tax @ 5% compulsorily from 1 April 2016 onwards, instead of 1% prescribed earlier. A circular has now been issued which empowers the department to initiate appropriate action against such dealers for recovery of tax due. Penalty could also be initiated for short payment as per the statutory provisions of the Delhi VAT Act,2004.

    (Ref: Circular No 8 of 2016-17 dated 30 May 2016)
  • The Government of Telangana has prescribed a rate of discount as 8% for calculating and paying the net present value of the deferred taxes by an industrial unit. The prescribed rate is valid up to 31 March 2017.

    (Ref: G.O.MS. No 115 dated 1 June 2016)
  • The government of Jharkhand has introduced the following provisions under the Jharkhand Value Added Tax Act 2005 (JVAT Act):

    • Advance Ruling: Advance ruling can be on the interpretation of any provision of the JVAT Act, Rules or Notifications issued under JVAT Act in respect of a transaction proposed to be undertaken by a dealer even though any question relating to the said provision has not arisen in any proceeding.
    • Single Window Clearance Act 2015: This is aimed at providing accelerated and time bound grant of various licences, permissions and approvals to promote industrial development; to facilitate new investments; to simplify the regulatory framework by reducing procedural requirements and rationalising documents; to improve ease of doing business; and to provide for an investor friendly environment in the State of Jharkhand.
    (Ref: Jharkhand Ordinance 03, 2016 dated 1 June 2016)
  • Puducherry commercial taxes department has created (i) a dedicated WhatsApp mobile number (73 95 89 89 89) with a view to create an environment of voluntary tax compliance through public participation, and (ii) a dedicated e-mail id (complaints.ctd@gmail.com) to lodge complaints/share suggestions in regard to matter related to VAT (Sales Tax) utilizing either the Whatsapp number or email id.

    (Ref: Press release dated 7 June 2016)
  • Tamil Nadu Commercial Tax Department has extended the period for obtaining Form 'C' and 'F' for the period up to 31 March 2016 to 31 July 2016 beyond which no further extension will be provided.

    (Ref: Circular 6 of 2016 dated 13 June 2016)
  • Haryana state government has implemented a single ID system with effect from 1 June 2016 with a view to facilitate the business and to enhance ease of doing business in the state. The same shall be applicable to the following acts:

    • Haryana Value Added Tax Act 2003
    • Central Sales Tax Act 1956
    • Haryana Tax on Luxuries Act 2007
    • Punjab Entertainment Duty Act 1955 (as applicable to Haryana)
    (Ref: Circular No 940/ST-1 dated 14 June 2016)
  • Haryana state government with a view to facilitate the business and to enhance ease of doing business in the State, has decided to grant Registration Certificate under Haryana Value Added Tax Act 2003 (HVAT Act)/Central Sales Tax Act 1956 (CST Act)within one working day to the Industrial Units which are being set up on self-owned premises/land. The following documents need to be submitted in this context:

    • Attested copy of the title deed of the business premises self-owned by the proprietor/ Hindu Undivided Family/Firm/Company/Association of Persons/ any of the Partners.
    • Bank Guarantee of Rs 5 lacs each under the HVAT Act and the CST Act in favour of Assessing Authority.
    (Ref: Circular No 950/ST-1 dated 14 June 2016)
  • Rajasthan state government has introduced Entry tax @ 5.5% on goods which are not mentioned in the schedule for Entry Tax but are mentioned in Schedule III, IV, V and VI of the Rajasthan Value Added Tax Act 2003. However for the time being, the state government has granted an exemption from payment of Entry tax on such goods.

    (Ref: Notification No F. 12(61) FD/Tax/2014-Pt-I-25/26 dated 16 June 2016)
  • Rajasthan state government of has introduced the concept of single user ID for VAT, CST, Entry Tax (Goods), Entertainment Tax & Luxury Tax to reduce physical interface with department and to make access to e-services under various acts easier and dealer friendly. (Ref: Dealer Circular-06/2016-17 dated 22 June 2016)
  • Madhya Pradesh state government has made electronic application in Form 6 mandatory for registration under Madhya Pradesh Value Added Tax Act 2002. The dealer applying electronically will not be required to submit documents in any other manner but will have to give the application and annexures thereto in original to the Registering Authority or an official authorised by him visiting the place of business of the dealer to verify correctness of the particulars given in the application.

    (Ref: Notification No F-A-3-31-2016-1-FIVE-(33) dated 10 June 2016)
  • West Bengal state government has extended the exemption granted to sale of aircraft fuel up to 31 March 2018.

    (Ref: Notification No 798-F.T. dated 3 June 2016)
  • Punjab state government has extended the facility of e-filing of returns and e-payment of taxes (monthly/quarterly/yearly) available for VAT to CST, Luxury Tax and Entertainment Tax. Further, the e-payment facility has also been extended for the submission of registration fee for VAT, CST and Luxury Tax through their portal.

    (Ref: Public Notice dated 17 June 2016)

RECENT CASE LAW

Customs

  • Delhi High Court holds that rights under the provisions of the Foreign Trade Policy cannot be curtailed by customs notifications.

    The Delhi High Court observed that the Served from India Scheme (SFIS) scheme has been implemented by Directorate General of Foreign Trade (DGFT) working under the Ministry of Commerce. In the event of conflict of views between two ministries of the central government, the view taken by the Ministry that is primarily responsible for the policy, which in this case is Ministry of Commerce, should prevail. The Customs Notification No 91/2009 dated 11September 2009 issued under section 25 (1) of the Customs Act to the extent it restricts the transfer/sale of goods imported using the SFIS duty credit scrips, is in violation of the Foreign Trade Development and Regulation Act, 1992, , the the Foreign Trade (Regulation) Rules 1993 as well as Foreign Trade Policy 2004-2009 and Foreign Trade Policy 2009-2014 where such goods satisfy the criteria for transferability under the Foreign Trade Policy and Hand Book of Procedure.

    (Ref: Greatship India Ltd v. The Union of India)
  • Gujarat High Court allows claim of brand rate of drawback even when customs duties paid by debit of DEPB Scrip.

    The exporter claimed drawback of duty paid on raw materials on which Custom Duty was paid by utilising Duty Entitlement Pass Book (DEPB) scrip. This application for brand rate was denied on the ground that the customs duties at the time of import were paid via the DEPB Scrip and not in cash. The Gujarat High Court (Gujarat HC) held that section 75 of the Customs Act 1962 allows duty drawback on imported materials used in the manufacture of export goods. In terms of the rules notified under section 75, the Gujarat HC observed that there was no restriction on drawback when customs duty was paid via a DEPB scrip. The Gujarat HC held that the entire customs duty including basic customs duty was eligible to brand rate of drawback even when paid via the DEPB Scrip.

    (Ref: Ratnamani Metals and Tubes Ltd v. The Union of India)

Central Excise

  • Appellate Tribunal holds that suo motu payment of duty would provide assessee protection from penalty.

    Appellant defaulted excise duty payment. He suo motu paid the duty along with interest and intimated the tax department. The Customs Excise and Service Tax Appellate Tribunal (CESTAT) held that, no Show Cause Notice should have been issued as after payment of duty and their declaration to tax authorities, no short payment of duty exists. The provisions of section 11A (2B) is very clear that if the duty and interest is paid on ascertainment by the assesse, the case should be concluded and no show cause notice should be issued.

    (Ref: Paragorn Industries v. Commissioner of Central Excise)
  • Gujarat High Court holds that assessee entitled to refund of oil cess; not a duty of excise per statutory provisions.

    The petitioner was paying oil cess on the clearance of crude oil under section 15 of the Oil Industry (Development) Act 1974 (OID Act). As per the provisions of OID Act, Oil Cess which is collected as duty of excise. The petitioner claimed refund of the Education Cess and approached the Gujarat HC, after its claim was rejected by the tax authorities.

    The Gujarat HC noted that merely because the machinery provisions of the Central Excise Act 1944 and the rules framed thereunder for collection and refund have been incorporated in the OID Act, Oil Cess cannot assume the character of central excise duty. Therefore, the requirements of section 93 of the Finance Act 2004 (education cess) and section 138 of the Finance Act 2007 (secondary and higher education cess) have no applicability to the facts of the present case. Accordingly, the Gujarat HC held that the assessee was entitled to the refund. The HC also held that the amount was paid under a mistake of law and a writ petition is maintainable. It also held that section 11B of the Central Excise Act 1944 dealing with limitation period has no application to the impugned case.

    (Ref: Joshi Technologies International Incorporated, India Projects v. Union of India)

Service Tax

  • Delhi High Court ('HC') rules that Service tax shall not be leviable on under construction flats if contract price includes value of land.

    The question before the HC was whether the consideration paid by flat buyers to a builder/promoter/developer for acquiring a flat being constructed in a complex, which was under construction/development at the time of agreement to sell between the builder and buyer, could attract service tax under section 65(105)(zzzh) of the Finance Act 1994 ( Act).

    Taxable value of the 'construction of complex service' was determined under Notification No. 29/2010-ST dated 22 June 2010 at 25% of the gross value.

    The HC upheld the power of the Parliament to levy tax on the construction of complex which is intended for sale by a builder or any person before during or after construction by creating a legal fiction. However, the HC found that neither the Act nor the rules framed therein provide any specific method to calculate the service components attracting service tax. The HC held that levy of service tax on 25% of the gross value by issuing a notification cannot substitute the statutory machinery provisions required to determine the measure of tax. The HC quashed levy of service tax on construction of complex service under section 65(105)(zzzh) of the Act in the absence of requisite statutory machinery provisions to determine the measure of tax on composite contracts.

    The HC directed that if the developer has already collected the service tax on such services, the same shall be refunded by the department to the petitioners with interest at the rate of 6%.

    (Ref: Suresh Kumar Bansal v. the Union of India)

Value Added Tax

  • Maharashtra Sales tax Tribunal (MSTT) upholds taxability of Transferable Development Rights acquired under SRA project.

    The MSTT has held the issue of taxability of Transferable Development Rights (TDR)/Development Right Certificates (DRC) acquired under Slum Rehabilitation Authority ('SRA') project and subsequently transferred that such transfer, would be taxable under the provisions of Maharashtra Value Added Tax Act 2002 (MVAT Act). The MSTT analysed the clauses of the contract, provisions of the MVAT Act along with legal precedents and has held that acquisition of TDR is taxable under the provisions of the MVAT Act if the same is issued as a consideration not only for land but also for undertaking construction activities. In the absence of contract value, MSTT directed the authorities to follow the mechanism to compute the consideration attributable to TDR and determine its value applying Rule 58 of MVAT Rules.

    (Ref: M/s Sumer Corporation v. State of Maharashtra)
  • The Karnataka High Court (HC) ruled that input tax credit on common inputs shall not be available in cases where taxable and exempt goods are involved.

    HC ruled in favour of Revenue involving Karnataka VAT law and disallowed the input tax credit (ITC) claimed by assessee on the basis of a formula in case of common inputs. The HC stated that since the assessee was involved in manufacturing, processing, packing and trading activities which involved taxable as well as exempt goods, ITC should have been calculated as per section 11, 14, 04 and 17 of Karnataka Value Added Tax Act, 2003 (KVAT Act) read with Rule 131(3) of the Karnataka Value Added Tax Rules, 2005 (KVAT Rules). The court observed that it was the responsibility of assessee to move to Commissioner for specifying formula for calculating input tax credit and getting it approved. Consequently in the given set of circumstances the same was denied.

    However the HC allowed input tax credit in respect of purchases effected for research activity which was ancillary to the business, stating that the definition of business under KVAT Act is inclusive and not exhaustive and since the research activity had direct nexus with the manufacturing activity the same would fall under the definition of business.

    (Ref: Hindustan Unilever Ltd v. State of Karnataka)
  • The Guwahati High Court (HC) ruled that section 5 of the Limitations Act to condone delay in revision petition cannot be invoked.

    The issue before HC was whether the provisions of section 5 of Limitations Act, 1963 (Limitation Act) would be applicable to a revision filed under Section 81(1) of the Assam Value Added Tax Act, 2003 (Assam VAT Act)

    HC noted that section 81 of the Assam VAT Act provided for filing of revision before the HC against a decision of an Appellate Tribunal within 60 days after being notified thereof. Section 84 provides that section 4 and 12 of the Limitation Act would be applicable in computing the period of limitation. Hence, a reading of these provisions showed the intention of the legislature is to limit the applicability of the Limitation Act only to sections 4 and 12, to a proceeding under this Chapter and section 5 has been consciously excluded from the purview of section 84. Further the HC found from a reading of section 84 that it evident that the Legislature did not intend to confer upon it the discretionary jurisdiction of condoning delay in filing a revision petition by invoking section 5 of Limitation Act. The HC observed that "Had the legislator intended to confer such discretionary power upon the High Court to condone the delay in filing a revision beyond the prescribe period of 60 days by invoking section 5 of the Limitation Act, 1963 then there was no reason for not including section 5 also in section 84 of the Act 2003." Therefore, HC opined that the condonation of delayed applications filed under Section 5 of the Limitation Act were not maintainable in law. Accordingly, the revision petitions were dismissed.

    (Ref: Patel Brothers v. State of Assam & Others)
  • The Patna High Court (HC) held that Police was well within its powers to investigate offences committed under VAT.

    The HC dismissed taxpayers' writ petitions, holding that police has the power to entertain, institute and investigate FIR instituted against the assesssee for violation of section 56(4) of Bihar VAT Act read with Indian Penal Code (IPC).

    The HC concluded that in absence of power of Officer-in-Charge of a Police Station having been vested with Bureau of Investigation (BI) or designated officer under VAT Act, it is not open to the assessee to allege lack of jurisdiction in the police to investigate the offence. HC upheld the validity of registration of FIR for offences under IPC where there was an alleged infraction of provision of the VAT Act. The HC observed that offences for which FIR is filed does not come under the vested powers of BI. The assessee's contention was that provisions of VAT Act (special act) will override Cr. PC (general act) based on the principles of generalia specialibus non-derogant". The said contention was rejected wherein the HC referred to section 4 and section 5 of the Cr. P.C. and held that all offences, whether under IPC or under any other law, have to be investigated / inquired into / tried / otherwise dealt with according to the provisions of Cr. P.C, unless there is some enactment regulating the manner / place of investigating / inquiring into / trying / otherwise dealing with such offences. There is no procedure for investigation that had been prescribed for offences under the VAT Act or IPC to oust the jurisdiction of the police to register and investigate the offence.

    (Ref: Azad Transport Company Pvt Ltd and Others v. State of Bihar and Others)

Goods and Service Tax

  • Goods and Service tax is now on horizon with the draft model GST law being approved by the Empowered Committee of State Finance Ministers. The Ministry of Finance released the draft GST bill in public domain on 14 June 2016 with a view to invite suggestions and feedback. The draft GST bill raises several issues which need to be resolved before it is enacted. The consultation process with the stakeholders on the draft GST law is also underway.
  • It is hoped that GST bill will be passed during the monsoon session of the parliament which will commence on 18 July 2016.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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