TIOL-DDT 369 · the untouched capture
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#663399" size="3">TIOL-DDT 369</font><br>
24 05 2006<br>
</b></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Wednesday </b></font></p>
<p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Service Tax - Structures also eligible for abatement</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In this year’s budget the scope of erection and Commissioning service was expanded to include structures. The definition now reads,</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">“erection, commissioning or installation” means any service provided by a commissioning and installation agency, in relation to,—</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(i) erection, commissioning or installation of plant, machinery, equipment or <b>structures</b>, whether prefabricated or otherwise; or ……………….</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Sl. No. 5 of the table to the Notification No. 1/2006-Service Tax, dated the 1<sup>st</sup> March, 2006 allowed abatement of 67% of the tax on Erection, commissioning or installation of plant, machinery or equipment. But here<b> structures </b>was not included. This omission is now made good. But then this does not have retrospective effect. What about the structures installed prior to May 23<sup>rd</sup>? Are they not eligible for the abatement? <b>DDT</b> also pleads guilty in not pointing this out earlier. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=40&filename=notification/servicetax/2006/stnot06_021.htm">Notification.</a></u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=40&filename=notification/servicetax/2006/stnot06_021.htm"><u> No. 21/2006-Service Tax dated 23<sup>rd</sup> May, 2006</u></a></font></p>
<p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>LoK Satta – Board’s clarifications</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Board in order to answer the suggestions given by the NGO Lok Satta had issued certain instructions which of course were not made public. Details about officers in the agreed list can be made public; A husband can get details of his estranged wife’s income tax details from the Income Tax department but the Revenue Boards are very touchy about parting with their circulars and instructions meant for the public. Given a chance these Boards would keep all the notifications and circulars and even the Acts and Rules a top secret. Coming back to Lok Satta these are some of the instructions given by the Board consequent to the Lok Satta sponsored mega meetings in Hyderabad and Mumbai. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Visit to Units: </b>The Board has examined the issue regarding visits by Central Excise officers to units other than SSI units. It has been decided that for visiting units other than SSI units also prior permission of Assistant Commissioner/ Deputy Commissioner should be obtained. It is further reiterated that the officers visiting these units should follow all the procedures laid down for visit to SSI units including making entries of relevant particulars in Visitor’s Book being maintained by the assessee.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Board had in Circular No. 397/30/98-CX, dated 2-6-1998 instructed that It has been decided that Inspectors posted in the Range should visit the units with the permission of the Superintendent once in a month only to conduct the prescribed PBC checks and the Range Superintendent should visit the unit once in two months only. For all other routine work, the units may be visited by the officers with the permission of the Assistant Commissioner. Is that circular withdrawn?</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Centralized Preventive / Anti-evasion wings- </b>Attention is invited to the Board’s instructions issued in September 2001 wherein the Preventive/ Anti-evasion wing were centralized at the Commissionerate Head Quarters. It is once again reiterated that the Preventive/ Anti-evasion units are to be centralized at the Commissionerate Headquarters. Branches of the Headquarters preventive unit can be located in divisions, which are situated away from the Commissionerates. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>There are still many anti evasion units functioning in the Divisional offices. There are many units with just one Superintendent and no other staff. What is the Board doing when its instructions are flouted with impunity for the last five years? After all what is a divisional Assistant Commissioner/Deputy Commissioner worth without a preventive Superintendent to flaunt his power? Does the Board have any mechanism to check if its instructions are followed in the field?</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Supply of Relied upon Documents and Certified copies of seized records- </b>In normal course, Relied upon Documents of the show cause notice are retained till the case attains finality. However, it is seen that the other unrelied upon documents are not being returned in time. In this regard, it is reiterated that unrelied upon documents have to be returned at the earliest. Further, Certified copies required for statutory and financial purposes should be given, at the cost of the assessees, within 30 days from the date the documents are taken by the department.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Is the department going to have a commercial Xerox shop? How are they going to determine the cost of certified copies and how is the cost to be paid? </b> </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Identity Cards- </b>It is also reiterated that Identity cards are to be carried by all the officers at all times. All the officers should present their identity cards at the time of visit to any unit. The officers should also make entries of relevant particulars in Visitor’s Book being maintained by the assessees in case of any such visits.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Avoidance of vexatious searches- </b>Attention is invited to the provisions of section 22 of the Central Excise Act, 1944 which states that any Central Excise or other officer exercising powers under the Central Excise Act 1944 or under the rules made there under, searches or causes to be searched, any premise or carries out vexatious detention, or arrests any person or commits any other act to the injury of any person, without having reason to believe that such act is required for the execution of his duty is punishable under the Act. The Board desires that the Chief Commissioner and Commissioners should ensure that the officers exercising such powers are advised suitably in this regard.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>RAC & PGC Meetings – </b>As per the Board’s instructions, the meetings of the Regional Advisory Committee and the Public Grievance Committee are to be held by the Central Excise Commissionerates on a regular basis. These committees are to be chaired by the Commissioner and attended by other senior officers of the Commissionerates and representatives from the trade. In this regard the Board desires that the Commissioners to take up the initiative to persuade the assessees to ensure high level of participation from Trade and Industry in such interactive meetings.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Hope they are not going to summon the assessees to attend the RAC meetings. The RAC meetings are now a pathetic show in every Commissionerate with about 30 officers and three assessees present. Why do assessees shun RAC meetings? They know pretty well that nothing comes out of these meetings. Either issues e brushed aside or promised to be referred to the Board. There was an assessee who asked a doubt in an RAC meeting and the next day he was raided on the same very issue and stuck with a Show Cause Notice alleging suppression and the officers shared a big reward for booking a big case. Will that assessee ever ever attend an RAC meeting? </b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Registration Procedure-</b> Detailed procedure for registration has been laid down vide the Board’s Circular No. 593/30/2001-CX dated 19-10-2001. It is reiterated that the procedures and time limits prescribed therein should be strictly followed. Acknowledgements should be given for applications of registrations immediately and deficiency note, if any, should be given within two days positively. The Commissioner may prescribe a Proforma for such deficiency note. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Citizen’s Charter:</b> The Citizen’s Charter is a declaration of CBEC’s mission, values and standards in relation to the formulation and implementation of the Central Excise procedures. Certain time frames in relation to completion of tasks have been indicated in the charter. The Board desires that the field formations should strive to adhere to these time frames.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>What happens if they don’t? The Citizen’s charter used to be displayed in the offices. Now everybody has forgotten the charter. Just a reminder</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>WE SHALL</b></font></p>
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<ul type=disc>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">acknowledge declarations, intimations, applications, returns and all communications on the spot and in any case within 7 days of their receipt. <br>
</font></li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">respond to all communication within 15 working days of its receipt. <br>
</font></li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">settle any disputes relating to declarations or assessments within 10 working days of receipt of your written or oral explanation. <br>
</font></li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">refund amounts due to you within 30 working days of receiving a valid claim. <br>
</font></li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">pay any duty drawback due to you within 48 hours of the export of the goods in case of electronic declarations and 15 days in case of paper declarations. <br>
</font></li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">release, where your declaration relating to any consignment is complete and correct,
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</font>
<ul>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif">in case of exports, within 8 hours of filing an electronic declaration or within 24 hours of filing a paper declaration. <br>
</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In case of imports, within 24 hours of filing an electronic declaration or within 72 hours of filing a paper declaration.<br>
</font></li>
</ul>
</li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Complete excise registration formalities within 48 hours of receiving your application. <br>
</font></li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Return to you the input duty documents on which MODVAT credit has been availed of within 7 days of your submission. <br>
</font></li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Complete examination and clearance of your export consignment at your factory premises, whenever you seek such a facility, within 8 hours of receiving intimation. <br>
</font></li>
<li ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Give you 15 days advance intimation before we undertake audit of your records. </font></li>
</ul>
</div>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Have you seen any of these being ever done?</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=31&filename=notification/excise/2006/cxinstruct03.htm">CBEC F.No.201/ 07/2006-CX6 Dated: March 31, 2006</a></u></font></p>
<p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Stay invested – advises FM</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Finance Minister told the Parliament that the Stick market crash was not alarming. “We must accept the fact that markets will rise and markets will fall in response to developments. That is a natural phenomenon. The secular rise in India in the last two years is attributable to the sound India growth story. In my submission, the India growth story remains intact. In view of the fact that calm has returned to the market my advice to genuine long-term investors is to stay invested.” </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=wnew/cbdt.htm">See
text of FM’s statement in</a> <b><u>What’s new</u></b> </font></p>
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<TD><p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><i><strong><font color="#0000FF">Expressio</font></strong></i><strong><font color="#0000FF"><i> Unius </i></font>– the maxim actually is <i>expressio unius est exclusio alterius </i>when given a list of things, it is intentionally to the exclusion of others.; mention of one thing in a statute implies exclusion of another. </strong> </font></p> </TD>
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The High Court’s view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim : “Expressio unius est exclusio alterius”. But, as was pointed out by Wills, J. in Colquhoun v. Brooks, (1888) 21 QBD 52 at p. 62 this maxim “is often a valuable servant, but a dangerous master.........”. The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. – <strong>Supreme Court of India</strong></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">where it is doubtful whether a stated term does or does not include a certain class, and words of extension are added which cover some only of the members of the class, it is implied that the remaining members of the class are excluded” <strong>(<i>Expressio unius</i> principle : words of extension) – CESTAT</strong></font></p>
<p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Tomorrow with more DDT </font></p>
<p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a nice day. </font></p>
<p><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>
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