TIOL-DDT 1374 · the untouched capture
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<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN" "http://www.w3.org/TR/html4/loose.dtd"> <html> <head> <title>Untitled Document</title> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> </head> <body> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#663399" size="3">TIOL-DDT 1374 </font><br> 07.06.2010 <br> Monday </strong></font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Determination of value under Section 14 of Customs Act, 1962 in respect of sale of warehoused goods - CBEC Clarifies</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>BOARD</strong> has observed that there is prevalence of divergent practices in field formations with respect to determination of assessable value of imported goods that are warehoused under Sections 58/59 of the Customs Act, 1962 and sold before being cleared for home consumption.</font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">While one view is that the sale of imported goods after warehousing <strong>does not affect the valuation of imported goods</strong>, the other view is that the <strong>price at which the original importer has sold the goods</strong>, before a Bill of Entry for home consumption is filed, <strong>should be taken as the assessable value of the imported goods</strong> under Section of the Customs Act. <em><font color="#FF6633">(emphasis supplied by us)</font></em> </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Pray, Where is the difference in these two views? </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Board examined the matter in the light of provisions of Section 14(1) of the Customs Act, 1962 (both prior to and after its amendment in October 2007) and the relevant pronouncements of the Supreme Court and clarified as follows: </font></p> <p align="justify"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Under current Section 14: </font></strong></p> <blockquote> <p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">“The current Section 14 states that the value of the imported goods shall be the transaction value of goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation. The sale of goods after warehousing them in India cannot be considered a sale for export to India. It cannot be stated that the export of goods is not complete even after the imported goods were cleared for warehousing in the country of import. Thus, <strong>the price at which the imported goods were sold after warehousing them in India does not qualify as the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation and, hence, the value at which such transaction takes place will not qualify as the transaction value, as per Section 14.</strong> ” </font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><em><font color="#FF6633">(emphasis supplied by us)</font></em></font><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"></font> </p> </blockquote> <p align="justify"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Under old Section 14 (prior to October 2007): </font></strong></p> <blockquote> <p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">“The sale of imported goods made after warehousing cannot be considered to have been made in the course of international trade and hence, <strong>the price at which such sale takes place is not a price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation, in the course of international trade , in terms of Section 14.</strong>”</font><em><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"> (emphasis supplied by us) </font></em></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Board further referred to Para 15 of Chapter 10 of the CBEC manual which states as follows: </font></p> <blockquote> <p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">“The rate of duty applicable is as per provisions of Section 15 of the Customs Act i.e. on the date on which the goods are actually removed from the warehouse. However, when the warehousing period or the extended warehousing period has expired, the duty payable is with respect to the date when the warehousing/extended warehousing period expired and not the actual date of removal. <strong>In so far as value for assessment of duty for warehoused goods is concerned, it is not required to be re-determined and it is the original value as determined at the time of filing of Into-Bond Bill of Entry and assessments done before warehousing.</strong>”</font><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"> <em>(emphasis supplied by us)</em> </font></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Board referred to the Supreme Court decision in Garden Silk Mills case and stated as follows: </font></p> <blockquote> <p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">“In this connection, the decision of Hon'ble Supreme Court in the case of <em>Garden Silk Mills</em> <em><strong>(<font size="1"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=26&filename=legal/sc/2002/2002-TIOL-19-SC-CUS.htm" target="_blank">2002-TIOL-19-SC-CUS</a></font>)</strong></em> was also examined. Hon'ble Supreme Court had held in the case of Garden Silk Mills that “-- the value has to be determined with relation to time when physical delivery to the importer can take place. Physical delivery can take place only after Bill of Entry, inter alia, for home consumption is filed and it is the value at that point of time which would be relevant --”. However, in the case of Garden Silk Mills, the Court was considering the issue of includibility of landing charges in the assessable value of imported goods. The goods in that case were cleared for home consumption after import and no warehousing or sale was involved before clearance of the imported goods. The issue of whether sale of imported goods after warehousing would constitute a sale in the course of international trade was not an issue before the Hon'ble Court. Thus, the main issue involved as well as the facts and circumstances of the present case are not identical to those of Garden Silk Mills case. Hence, the rationale of the said case cannot be applied to the present case.” </font></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Board further compared sales from warehouse to high-seas sale and stated as follows: </font></p> <blockquote> <p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">“Further, Board had examined the valuation of goods sold on “high-seas-sales” basis and had issued Circular 32/2004 Customs dated May 11, 2004 stating that in such case, the actual high-seas-sale-contract price paid by the last buyer would constitute the transaction value under Rule 4 of Customs Valuation Rules, 1988 and inclusion of commission on notional basis may not be appropriate and that, however, the responsibility to prove that the high-seas-sales-transaction constituted an international transfer of goods lies with the importer. <strong>The facts and circumstances of a sale of warehoused goods are not similar to the case of “<em>high-seas-sales</em>” since the sale/transfer of imported goods after warehousing cannot be considered to have been made in the course of international trade</strong>. Further, the above-referred circular had clarified that the inclusion of commission on notional basis may not be appropriate even in case of “high-seas-sales”. Therefore, <strong>the question of adding any amount on notional basis in the case of goods already warehoused in India and sold subsequently would not arise</strong>.”</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <font color="#FF6633"><em>(emphasis supplied by us)</em></font> </font></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Summing up, the Board states that <font color="#663399">in case of sale of imported goods after they are warehoused on Indian territory, the value at which such transaction took place will not qualify as the transaction value, as per Section 14. </font></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Board has directed that pending assessments on the issue, if any, should be finalized accordingly. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#FF6633">With this Circular Board wanted to dispel the doubts regarding valuation of sale of warehoused goods but it only ended up saying what should not be treated as transaction value in such instances. Ideally this Circular should have clarified the manner in which sale of warehoused goods should be assessed. But in the process it failed to give any clarification and added a whole of confusion. </font></strong></font></p> <p align="justify"><font color="#FF6633"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Why can't the Board simply say what the value should be when goods are cleared from the warehouse? Even when Board clarifications are crystal clear, they are interpreted perversely in the field; what will be the fate when the clarifications don't really clarify anything? </font></strong></font></p> <p align="justify"><font color="#FF6633"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">When you are asked to show your nose, there are two ways of doing it. Which one would you choose? </font></strong></font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=25&filename=notification/custom/2010/cuscir10_011.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CBEC CIRCULAR NO. 11/2010 - Cus., Dated: June 3, 2010</font></strong></a></p> <p align="center"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#006600">Jurispruden</font><font color="#FF6633" size="5">tiol</font><font color="#006600"> – Tuesday's cases</font></strong></font></strong></font></p> <p><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><img src="http://www.taxindiaonline.com/RC2/image/stories/ddt_hammer.jpg" alt="Legal Corner Icon" width="100" height="84" hspace="5" border="0" align="left">Central Excise</font></strong></p> <p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Modvat - Deemed Credit - Burden of proof was on revenue to prove that inputs used by assessee were not being duty paid or charged to Nil rate of duty: High Court </strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> revenue cannot possibly be heard to say that it is for the assessee to show that the conditions are satisfied, but in fact the revenue has failed to prove that the inputs used by the assessee are recognizable as not being duty paid or charged to Nil rate of duty. In that eventuality, the exemption already availed by the assessee must be regarded as having been rightly availed. Therefore, it is held that burden of proof was on the revenue to prove that the inputs used by the assessee were not being duty paid or charged to Nil rate of duty and in the absence of any cogent material on record in this relevant connection, the assessee cannot legally be denied the right to avail the facility of <em>MODVAT credit</em>. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Wealth Tax </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">A mere right to receive enhanced compensation is an inchoate right which cannot be treated as wealth for taxation purpose: High Court </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> issue before the Bench is whether in view of the scheme of Land Acquisition Act, a mere right to receive compensation is an inchoate right and cannot be termed as final right. And its answer is YES. Now the question is whether such an inchoate right can be treated as wealth of the assessee under the provisions of W.T.Act as they stood at the relevant time. And this time the answer is NO. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Customs</font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Imported Goods yet to be cleared - Writ Petition premature - Proper Officer directed to adjudicate: High Court </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>IT</strong> is now well settled that the power of judicial review of the Court under Article 226 of the Constitution of India includes all cases where the orders are passed by the authorities or even where the authorities have failed to exercise jurisdiction vested in them. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">See our columns Tomorrow for the judgements </font></strong></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Tomorrow with more <strong>DDT</strong></font></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a nice day.</font></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <a href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com </a></font></p> </body> </html>