TIOL-DDT 300 · the untouched capture
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<td><p class=c-t1><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#663399" size="3">TIOL-DDT
300</font><br>
10 02 2006<br>
Friday</b></font><b><span style='font-size:10.0pt;font-family:Verdana;color:#0000CC'><br>
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<td> <p align="center"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Welcome
to the 300th edition of DDT</b></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Appeals
– Committee of Commissioners</b></font></p>
<p align="center"><font size="2"><b><font color="#006600" face="Verdana, Arial, Helvetica, sans-serif">What
happens if there is a difference of opinion? File appeal – Naturally</font></b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Immediately
after the Budget, in <b>DDT 66 - 2 3 2005</b>, we asked, <b>And what
happens if the two Chief Commissioners have a difference of opinion
between them? One says, file the appeal and the other says, NO. Refer
to a third Chief Commissioner? But the law is silent on this. And
the problem has to be solved within three months.</b> But the Government
did not react for more than 11 months. A senior netizen wrote
to us that the opinion of the senior member should prevail. There
was a provision under the old Arbitration Act, when there are two
arbitrators, they had to appoint an umpire and the umpire had to give
his decision covering the dissenting opinion. Now after nearly a whole
year, Board had clarified the issue. Board’s clarification is
a master piece.<br>
<br>
1. Board says that it has <b>decided,</b> “When two members
take a common view to file an appeal or not to file an appeal, there
would be no difference of opinion and the same would be followed.”
What a brilliant discovery, decision and conclusion!<br>
<br>
2. “In a rare case when two member take different views that
is one member takes a view to file an appeal and the other member
opposes it the decision should be to file an appeal.” Why should
this be a <b>rare</b> case? Does the Board believe that no Commissioner
has the guts to take a decision not to file an appeal and it is only
in a rare case that such a decision would be taken? And when one member
has taken a decision not to file an appeal how can it be held that
the decision <b>is</b> to file an appeal?<br>
<br>
Is the Board trying to influence the Committee of Commissioners? Is
the Commissioner who has taken a decision not to appeal required to
pass an order that on going through the order he has come to the conclusion
that the order is not proper and legal and so the department must
file the appeal, because the Board has directed him to pass such an
order?.<br>
<br>
The more important legal question is “Is the Board’s circular
legally valid?” Section 35B(2) stipulates that the committee
of Commissioners if it is of the opinion that an order passed by the
Commissioner (Appeals) is not legal and proper, direct and authorise
a Central Excise Officer to appeal against the order. So it is very
clear from the Section that it is the <b>committee </b>of Commissioners
who should form the opinion and not one member of the committee. If
the Board wants appeal to be filed anywhere even without the approval
of both the members, it should get the law amended and not issue a
Circular. Board certainly cannot usurp the powers of the Parliament
and amend the Act by a circular.<br>
<br>
Incidentally the Board’s numbering system has gone haywire.
This Circular is given as No. 824/1/2006-CX., dated 6-2-2006. But
Board had already issued another circular with the same No. 824/1/2006-CX.,
on 16-1-2006. Now which of these two circular is Circular No. 824/2006?<br>
<br>
<a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=31&filename=notification/excise/2006/excircular824new.htm">CBEC
Circular No. 824/1/2006-CX., dated 6-2-2006</a></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Bird
Flu – DGFT’s latest initiative in curbing import of birds
– But what happens if the birds just fly in? </b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">A
customs officer sent a mail to his colleague, “what steps are
we supposed to prevent bird flu?” “If the bird flew, what
can we do” was the reply<br>
<br>
DGFT has issued a periodical Notification, incorporating amendments
in the General Notes on Import policy <b>that</b> prohibited import
of <b>certain birds, their semen and processed and unprocessed meat
from all countries</b> in view of the reported outbreak of Highly
Pathogenic Avian Influenza (Fowl Plague). Similarly, certain live
stock <u>imports from the countries reporting the outbreak</u> of
Highly Pathogenic Avian Influenza (Fowl Plague) are also prohibited.
This notification is apparently on the basis of the Ministry of agriculture’s
periodical notification <b>S.O.160(E) Dated 06-02-2006</b> (the earlier
notification 1104(E) Dated 06-08-2005 was valid for six months and
expired on 05-02-2006).<br>
<br>
<b>Avian influenza</b>, commonly known as <b>“bird flu”
</b>or <b>“Fowl Plague”</b> has become a cause of concern
to the Indian Government in the recent years. It is a contagious disease
of animals caused by viruses that normally infect only birds and,
less commonly, pigs. Avian influenza viruses are highly species-specific,
but have, on rare occasions, crossed the species barrier to infect
humans. In domestic poultry, infection with avian influenza viruses
causes two main forms of disease, distinguished by “low Pathogenic”
and “high Pathogenic” and the latter form is far more
dangerous that spreads very rapidly through poultry flocks, causes
disease affecting multiple internal organs, and has a mortality that
can approach 100%, often within 48 hours.<br>
<br>
Department of Animal Husbandry under the Ministry of Agriculture is
alert and from to time has been issuing notifications prohibiting
import of certain birds, their semen and processed and unprocessed
meat from all the countries. Similarly, certain live stock <u>imports
from the countries reporting the outbreak</u> of Highly Pathogenic
Avian Influenza (Fowl Plague) are also prohibited.<br>
<br>
The important point is how many of the customs officers are aware
about the countries that reported the outbreak of this “Bird
Flu”? The Agriculture Ministry’s notifications as well
as the DGFT Notifications do not specify these countries. It is very
difficult for Customs to implement this prohibition as the officers
may not be aware of the countries that are reporting/ have reported
the outbreak of this Highly Pathogenic Avian Influenza. According
to World Health Organization (WHO), from mid December 2003 through
early February 2004, eight Asian countries have reported this. These
include, The <b>Republic of Korea, Vietnam, Japan, Thailand, Cambodia,
Lao People’s Republic, Indonesia and China.</b> Further, the
outbreak is also reported from August 2004 to till date from <b>Malaysia,
Russia, Kazakhstan, Turkey and Romania.</b> The investigations to
know about this outbreak are on in several parts of the world. Japan,
Republic of Korea and Malaysia have announced that they are free from
the decease now. What is the import policy in case of imports from
these countries? DGFT alone can give a clarification.<br>
<br>
<b>What is the danger for human life?</b> – There is a real
danger for human beings too. One particular virus –H5N1, the
causative agent, as per experts, is of particular concern for human
health also. The infection, if spread to human beings, especially
from poultry, causes mild respiratory problem and may go to an extent
of multi-organ failure. The greater concern is that this can mark
the start of global outbreak (a pandemic). Four countries have reported
human infection - <b>Cambodia, Indonesia, Thailand and Vietnam</b>.
The solace is that the virus does not spread quickly from birds
to humans.<br>
<br>
An interesting and baffling point is –<b>What if the migratory
birds carry this to India? - No one is able to answer to this.</b>
The Indian Government is trying its best to stop this by prohibiting
imports from the countries that reported the outbreak. At least to
some extent, this action is appreciable.<br>
<br>
For the benefit of the importers of Livestock and Livestock Products,
and also for the benefit of all field formations of Customs, we are carrying
today a detailed write up with the latest update of the legal provisions.
<strong><a href="http://taxindiaonline.com/RC2/subCatDesc.php3?filename=_4cfd295d4cf93a_livestock.htm&subCatDisp_Id=1">IMPORT
OF LIVE STOCK AND LIVESTOCK PRODUCTS</a></strong> we hope this will
be useful to our esteemed netizens.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=45&filename=notification/dgft/2005/dgft05not043.htm">DGFT
Notification No. 43 (RE-2005) Dated February 8, 2006</a></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">
<b>Import of products containing HCFC-22 – yet another clarification</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DGFT
had issued a circular No. 26 on 13th Sept. 2005 clarifying
that Air conditioners filled with HCFC-22 gas which had
already been imported will be treated as free imports and allowed
clearance by Customs. We had carried an article on the issue
<a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=2632">Air
Conditioners filled with HCFC-22 : Interesting but confusing</a>.
The article questioned,<br>
<br>
<b>So what does the DGFT Circular do?</b><br>
<br>
The said Circular interalia clarifies that Air Conditioners filled
with HCFC-22 ( R-22 ) gas, which have already landed and arrived but
not cleared for home consumption will be treated as free and clearances
will accordingly be allowed by Customs. Does this leave scope for
interpretation? What about the Air Conditioners en route to India
but not landed? What about further such consignments which will be
imported? Is the Circular amply clarifying the status on the subject
issue? Or is it just a ‘frivolous’ query?<br>
<br>
<b>Now the DGFT has clarified,</b><br>
<br>
The import of products containing HCFC – 22 (R-22) gas is free
under the ITC (HS) Classification of Export and Import Items. However,
the ODS Rules, 2000 stipulate that a license is required for such
imports.<br>
<br>
It has been decided that until such time this anomaly is sorted out,
licenses for import of products containing HCFC – 22 gas will
be issued by the Directorate General of Foreign Trade in cases where
clearances have been given by the Ministry of Environment and Forest.<br>
<br>
But the Circular however still remains shy from clarifying whether
Schedule I of the ODS restricts HCFC-22/R-22? – Does ODS restrict
import of Monocholorodifluoromethane?<br>
<br>
Since DGFT was not issuing licence for import of Air Conditioners
with HCFC-22, Customs Department in Mumbai and elsewhere in India
had come with the ingenious way out of obtaining Bond and Bank Guarantee
for clearing the air conditioners filled with Freon Gas – Ever
heard of allowing import of prohibited / restricted items by taking
Bond/ Bank Guarantee ?? Seriously, the Complement Cascading effect
of this Circular will continue and hopefully another Circular will
be in the offing.<br>
<br>
By the way, why increase paper work by having licence for import of
Air conditioners filled with HCFC –22? What purpose will possibly
be served by this? Does this help the cause of environment? What check
will one have on local manufacturers of the said product? Why increase
paper work and accordingly scope for harassment?</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<br>
<br>
<a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=46&filename=notification/dgft/2005/dgft05cir047.htm">DGFT
CIRCULAR NO . 47 (RE-2005)/2004-09, Dated: February 8, 2006</a></font></p>
<p class=MsoNormal align=center style='mso-margin-top-alt:auto;mso-margin-bottom-alt:
auto;text-align:center;text-indent:36.0pt'><b
style='mso-bidi-font-weight:normal'><u><span lang=EN-IN style='font-size:10.0pt;
font-family:Verdana;color:blue;mso-ansi-language:EN-IN'><o:p></o:p></span></u></b></p>
<p class=section1 align=center style='text-align:center'><span class=grame><b><img src="http://www.taxindiaonline.com/RC2/image/ddt/gnl_txt.jpg" width="375" height="62"></b></span></p>
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<td><img src="http://www.taxindiaonline.com/RC2/image/ddt/gnl_word.jpg" width="67" height="67" hspace="5" vspace="5" align="absmiddle"><span class=spelle><b><i><span
style='font-size:10.0pt;font-family:Verdana;color:#0000CC'> Inter Alia -
among other things - </span></i></b></span><span style='font-size:10.0pt;font-family:
Verdana'><span style='mso-spacerun:yes'> </span><o:p></o:p></span></td>
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<span style='font-size:10.0pt;font-family:
Verdana'></span> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
In the meantime on 19.12.1996 this Court delivered its judgment in
Mafatlal's case (supra) <b> <i>inter alia</i></b> giving 60 days'
time to those claimants</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
The SEZ Rules, <b>inter-alia</b>, provide for drastic simplification
of procedures and for single window clearance on matters relating
to central as well as state governments. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
The petitioners replied to the said show cause notice <b>inter alia</b>
contending that the SIP referred to in the show cause notice is not
comparable<br>
<br>
<b><font color="#663399">"We must all obey the great law of change.
It is the most powerful law of nature."</font></b> - <i><b> Edmund
Burke</b></i><br>
<br>
<font color="#FF6666"><b>Until Monday with more DDT<br>
<br>
Have a nice Weekend.<br>
<br>
Mail your comments to</b></font> <a href="vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com
</a></font></p>
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