TIOL-DDT 384 · the untouched capture
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<p> <b><font color="#663399" size="3" face="Verdana, Arial, Helvetica, sans-serif">TIOL-DDT
384</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><br>
14 06 2006<br>
Wednesday</font></b></p>
<p align="center" ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Intelligence
in iPod and Pen Drive</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Gone are
the days when raiding parties like the super sleuths of DRI, DGCEI or the humbler
local preventive parties and investigative teams from the Income Tax would come
with truckloads of records after every raid. Private records, insignificant
chits hiding volumes of information leading to tons of money have given way
to microchips, pen drives and iPods. The munimji has withdrawn in favour of
mind boggling software housed in miniature devices like the pen drive. These
gizmos that can fit into a wallet can store data up to 30 GB. The so called
incriminating documents will now be found not in the godowns but maybe in the
pockets of the evaders. So raiding parties have to be doubly careful to recover
these fancy gadgets during the raids. But these can be destroyed or transferred
easily like they can be thrown into a burning stove or crushed under the foot
before the raiding party can say ‘Search’. But how far is the evidence valid?
Have a look at Section 36B of the Central Excise Act, which is extracted below
for your ready reference.</font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>36B.
Admissibility of microfilms, facsimile copies of documents and computer print
outs as documents and as evidence.-</b> (1) Notwithstanding anything contained
in any other law for the time being in force,— </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(a) a micro
film of a document or the reproduction of the image or images embodied in such
micro film (whether enlarged or not); or </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(b) a facsimile
copy of a document; or </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(c) a statement
contained in a document and included in a printed material produced by a computer
(hereinafter referred to as a "computer print out"), if the conditions
mentioned in sub-section (2) and the other provisions contained in this section
are satisfied in relation to the statement and the computer in question, shall
be deemed to be also a document for the purposes of this Act and the rules made
thereunder and shall be admissible in any proceedings thereunder without further
proof or production of the original, as evidence of any contents of the original
or of any fact stated therein of which direct evidence would be admissible.
</font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(2) The
conditions referred to in sub-section (1) in respect of a computer print out
shall be the following, namely:— </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(a) the
computer print out containing the statement was produced by the computer during
the period over which the computer was used regularly to store or process information
for the purposes of any activities regularly carried on over that period by
the person having lawful control over the use of the computer; </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(b) during
the said period, there was regularly supplied to the computer in the ordinary
course of the said activities, information of the kind contained in the statement
or of the kind from which the information so contained is derived; </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(c) throughout
the material part of the said period, the computer was operating properly or,
if not, then any respect in which it was not operating properly or was out of
operation during that part of that period was not such as to affect the production
of the document or the accuracy of the contents; and </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(d) the
information contained in the statement reproduces or is derived from information
supplied to the computer in the ordinary course of the said activities. </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(3) Where
over any period, the function of storing or processing information for the purposes
of any activities regularly carried on over that period as mentioned in clause
(a) of sub-section (2) was regularly performed by computers, whether— </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(a) by
a combination of computers operating over that period; or </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(b) by
different computers operating in succession over that period; or </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(c) by
different combinations of computers operating in succession over that period;
or </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(d) in
any other manner involving the successive operation over that period, in whatever
order, of one or more computers and one or more combinations of computers, all
the computers used for that purpose during that period shall be treated for
the purposes of this section as constituting a single computer; and references
in this section to a computer shall be construed accordingly. </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(4) In
any proceedings under this Act and the rules made thereunder where it is desired
to give a statement in evidence by virtue of this section, a certificate doing
any of the following things, that is to say, </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(a) identifying
the document containing the statement and describing the manner in which it
was produced; </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(b) giving
such particulars of any device involved in the production of that document as
may be appropriate for the purpose of showing that the document was produced
by a computer; </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(c) dealing
with any of the matters to which the conditions mentioned in sub-section (2)
relate, and purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the management
of the relevant activities (whichever is appropriate) shall be evidence of any
matter stated in the certificate; and for the purposes of this sub-section it
shall be sufficient for a matter to be stated to the best of the knowledge and
belief of the person stating it. </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(5) For
the purposes of this section,— </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(a) information
shall be taken to be supplied to a computer if it is supplied thereto in any
appropriate form and whether it is so supplied directly or (with or without
human intervention) by means of any appropriate equipment; </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(b) whether
in the course of activities carried on by any official, information is supplied
with a view to its being stored or processed for the purposes of those activities
by a computer operated otherwise than in the course of those activities, that
information, if duly supplied to that computer, shall be taken to be supplied
to it in the course of those activities; </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(c) a document
shall be taken to have been produced by a computer whether it was produced by
it directly or (with or without human intervention) by means of any appropriate
equipment. </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><i>Explanation.—</i>For
the purposes of this section,— </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(a) "computer"
means any device that receives, stores and processes data, applying stipulated
processes to the information and supplying results of these processes; and </font></p>
<p ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(b) any reference to information
being derived from other information shall be a reference to its being derived
therefrom by calculation, comparison or any other process. </font></p>
<p align="center" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#006600">Review of Service Tax Circulars</font></b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The
government is planning to undertake an extensive review of all circulars
and instructions relating to service tax issued since 1994. The review is
to be undertaken by Mr. T. R. Rustagi, former Joint Secretary, TRU. Now
the government has invited suggestions from trade and industry, departmental
officers and all others concerned on the proposed review. The suggestions
can be sent to Mr Rustagi or to the TRU by the 3<sup>rd</sup> of July, 2006.
There are hardly 200 circulars issued in the last 12 years of Service Tax
and it is rather easy to review them. Incidentally, Mr. Rustagi must have
been responsible for most of these circulars.</font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">But there
are over 2000 circulars each in Customs and Excise and reviewing them would
be a Herculean task. But it is certainly worth undertaking as certainty is one
of the cannons of taxation. To take the review a step further, the courts and
the tribunals should also undertake a review of all the orders passed by them,
at least once in every ten years. All those cases which have precedential value
should be identified and the rest of the cases should be unceremoniously dumped
into the dustbins of history. These dumped cases should never be allowed to
rise like the Phoenix, to be cited before any judicial proceedings. This would
make the case law also reasonably manageable. </font></p>
<p align="center" ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Committee
of Commissioners - Jurisdiction renotified – Who is Customs Commissioner
Vizag I?</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Ever
since four commissioners were appointed to hear appeals in Visakhapatnam,
the Board was finding it difficult to understand the intricacies of jurisdiction
for these Commissioners. Office orders, circulars, oral instructions and
notifications have all added to the confusion which <b>TIOL</b> has been
highlighting regularly. Now the Board has appointed the committees of commissioners
to review the orders passed by these four commissioners (appeals) ofVisakhapatnam.
Doesn’t it mean
that all these days there was no committee to review the orders of these commissioners
and if any committee was reviewing them it was without jurisdiction? And
if any case is lost because of the lack of jurisdiction, who should be held
responsible?</font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">And as
usual, every rectification by the Board invariably leads to another mistake
which has to be corrected later. Now the committee to review the customs orders
passed by the four Appellate commissioners of Vizag includes the Commissioner
of Customs Visakhapatnam I. No problem on this except for the fact that there
is only one Commissioner of Customs in Vizag and there is no post designated
as Commissioner of Customs Visakhapatnam I. This would mean we are back to square
one. No review of orders of these commissioners. </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=24&filename=notification/custom/2006/cnt06_063.htm">NOTIFICATION
NOs. 63</a></u><b><u> and </u></b><u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=24&filename=notification/custom/2006/cnt06_064.htm">64/2006-CUSTOMS
(NT)</a></u><b><u> and </u></b><u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=30&filename=notification/excise/2006/exnt06_14.htm">14/2006-CENTRAL
EXCISE (NT) Dated : June, 9 2006</a></u><b><u>.</u></b></font></p>
<p align="center" ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Target
Plus Scheme - DGFT amends</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Under the
Target Plus scheme, the duty credit as a percentage of incremental growth in
exports were five percent for growth between 20 and 25%, ten percent for growth
between 25% and 100% and fifteen percent of hundred percent for growth above
100%. Now this is changed to a flat rate of 5% of the incremental growth subject
to the condition that there should be a minimum incremental growth of 20%.</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=45&filename=notification/dgft/2006/dgft06not008.htm">DGFT
Notification No. 8/2004-09 dated June 12th, 2006</a></u></font></p>
<p align="center" ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>We are
not here to harass anyone- Income Tax CC</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Mumbai
Chief Commissioner of Income Tax, H. Tulsian, referring to the Amitabh Bachchan
notices said, “We are not here to harass anyone. If notices have been issued
to anyone, the concerned person has to reply while the law will take its own
course.” Here the Income Tax chief was really referring to the concerned person
and not the person concerned as anyone who gets a notice from the income tax
should be concerned. </font></p>
<p align="center" ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Import
of Wheat under zero duty – date extended and Mumbai port added</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">As per
public notice no. 7/2006, import of 30 lakhs MTs of wheat was allowed under
zero duty, subject to the condition that the imports are made by 30<sup>th</sup>
November 2006 and through certain specified ports. Now this date is extended
till 31<sup>st</sup> March 2007 and Mumbai port is added. </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=47&filename=notification/dgft/2006/dgft06pn018.htm">DGFT
PN Number 18/2006 dated June 12th 2006.</a></u></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#663399">If
my decomposing carcass helps nourish the roots of a juniper tree or the wings
of a vulture - that is immortality enough for me</font></b><font color="#663399">.</font> - <i>Edward Abbey,naturalist
and author (1927-1989)</i></font></p>
<p align="justify" ><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until
tomorrow with more DDT </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>
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