TIOL-DDT 512 · the untouched capture
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<font color="#663399" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="3">TIOL-DDT 512</font></strong><font size="2"><strong></strong></font></font><font face="Verdana, Arial, Helvetica, sans-serif"><font size="2"><strong><br>
14.12.2006 <br>
Thursday</strong></font></font>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Mumbai Service Tax Commissioner given All India jurisdiction </strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Yesterday DDT reported that ST Notification No. 30/2006 was missing. Today we could get it. The Notification grants All India jurisdiction to the Mumbai Service Tax Commissioner to adjudicate show cause notices issued to M/s Tata Consultancy Services Ltd., by the Mumbai Zonal Unit of the Directorate General of Central Excise Intelligence. </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=40&filename=notification/servicetax/2006/stnot06_030.htm">Notification No. 30/2006 Dated Novemeber11, 2006 </a></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>TIOL top writers write today's DDT</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Some of the famous personalities who frequently adorn our columns gathered today and DDT asked them to do today's DDT. Here's the garland of the sweet pieces they gave me. </font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Who said the Government servants are not punctual? </strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Ask anyone in the trade and they say, all Government offices start only at 11 in the morning. That too, in Customs it is invariably 1130. One of my dear friends, who work in Nhava Sheva Customs, is an odd man out in the crowd. When I asked him as to how he manages he told me that he takes his transport around 730 in the morning to reach in time. There is also a chartered bus, organized by the Customs department itself. Asked as to why he doesn't travel by it, he said that it starts around 900 and reaches Nhava Sheva only around 1045, which will make him late to office. Now the moot question is as to whether all the officers who board the Customs chartered bus and reach around 11 are punctual or not? </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Today, the prescribed office timing for a government servant starts at 915. When a government officer enters the chartered bus of the department, he is boarding it ONLY to go to office and not for any other work. In other words, he is starting his office work when he boards the bus! So when he enters the bus at 900 then the officer starts his work in time! Sounds funny? In an interesting case, an employee of a company met with an accident while traveling in the company bus while coming to the office from his residence. He claimed damages from the company but the company refused to pay him stating that only if the accident has happened while at work, he is entitled for a claim. The court held that the employee is entitled for compensation and also held that traveling for work in the company bus is as good as working for the company! </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">If so, the office timing closes at 1745. Applying the above rationale shall all officer roll curtains to their office around 1600 and board the chartered bus back to their home? </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>S. Jaikumar </strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Pre - audit blues ? </strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Netizens may recollect that it required a case of improper sanction of refund involving over Rs 4 crores , detected at the time of post - audit to trigger Board's Circular No 33/90 -CX introducing thereby pre-audit in respect of refund claims of Central Excise duties involving Rs. 5 lakhs and above. The cause of pre-audit was addressed again by the Board vide Circular No 809/6/2005- CX dated 01.03.2005 wherein in supersession of earlier instructions, Board decided that all refund / rebate claims involving an amount of Rs 5 lakhs or above should be subjected to pre-audit at the level of jurisdictional Commissioner. In such cases, a suitable Order-in-Original shall be passed by the Deputy / Assistant Commissioner of Central Excise. It has also been mentioned in the said Circular that since the claim is pre-audited with the concurrence of Commissioner, the usual review proceedings under Section 35E may not be necessary in such case. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Most of us would agree that the procedure of pre-audit enables the Department to doubly assure itself that the refund /rebate documents go through further scrutiny thus increasing the chances of detection of any fraud. However Hon'ble Bombay High Court in Bombay Chemicals Ltd vs Union of India has interalia observed that pre-audit before finalization is an interference by audit cell in the quasi-judicial proceedings and held that this was illegal and unauthorized especially as Audit Cell did not give any hearing to affected parties before finalization of its order thereby depriving them from their rights under the refund order. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The procedure of pre-audit continues in many Commissionerates blissfully oblivious of the above High Court directive. One Commissionerate falling within the jurisdiction of Bombay High Court has promptly brought the above development to the notice of the Board. Hopefully, we will have some decision on the same before contempt proceedings are launched by some aggrieved party for continuing with the prevalent practice of Pre-audit in terms of Boards Circular No 809/6/2005- CX dated 01.03.2005. There should however be no laxity in reducing the level of scrutiny on the refund / rebate documents and suitable methods should be undertaken to handle the situation without hurting the interest of Revenue. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Suresh Kumar Nair </strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Contravention in the Air? Simpliflying!</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Thanks to the Ministry's clarification, departmental officers can now travel by private airlines, which are swarming the Indian skies. The other day one of the officers traveled by the airline, which granted a "simplyflying" experience. He was not that thrilled by the air travel for it did not grant any comforts to him which he had heard that airlines offer - no charming airhostesses, no food (food to be purchased on board) and no pre-seating arrangements. But at the end of the day, he was happy that he did not have to shell too much from his pocket for he went hungry! However, two issues that he noticed would be fodder for the agencies to investigate - he found the airline interiors spluttered with advertisements of a premier news channel and so also the outer body of the aircraft. Probably Service tax payment by the airline!. The other was that packaged commodities were sold at a premium by the staff on the airline - probably this was in violation of Section 4A of the Central Excise Act or for that matter the Standards of Weights & Measures Act. Or is it that </font>
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">anything done in the skies does not apply in the AIR. Simply because the Acts apply to any contravention done on land! </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Sunil Achutan </strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Ground Realities </strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Before we land on the ground from the new found flying experience given to the officers it is time to get back to the basic needs of the officers working on the ground. It's the pay packets of officers from the revenue department. Of late there is a trend emerging with many officers of excise and customs looking for greener pastures. Even officers from the IRS brigade have put in their papers. Government puts in enormous effort to recruit some of the best brains from varied educational backgrounds to man the economic frontier of this country and it is painful to see this brain drain in the revenue. One obvious reason is the compensation. Unfortunately revenue officials are treated like any other government servants and their pay packets are ritualistically fixed. Can you imagine the officials to manage their lives with the meagre salaries in metros and at the same time be honest and ethical? Compare it with the US Customs and Border Protection officials' lives, our officials are poor cousins and truly third world. Even the revenue officials of our neighboring countries are paid well. It's Christmas time and DDT takes this opportunity to remind the Government to play Santa when the time comes to review the salaries of these hapless/'hope' less officials. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Santosh Hatwar </strong></font></p>
<div align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>What's in a name? Everything if it relates to tax </strong></font>
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It is no denying fact that providing taxable service would attract service tax, but now a days with the departmental officers -anti-evasion or auditors- and even officers from AG audit looking for cases of evasion, even mere mention of words remotely connected to the taxable service in books of accounts or advertisement pamphlets is enough to put a person in trouble. The Road Transport Authority of Andhra Pradesh has landed in trouble and a case was booked against it by the department, recently, not because they provide any taxable service, but because of a pamphlet printed by RTA. They printed a pamphlet - how to get a driving license- in the pamphlet they mentioned, among other things, about payment of Rs.50/- towards fee for driving test. This was treated by AG audit as falling under Testing and certification service and made an audit para and department has no option but to book a case. The moral of the story is "be careful about narration you give in books of accounts and avoid high sounding words". We will cover more on this soon. </font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Empty benches?</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The dispensation of justice through CESTAT is limping with shortage of technical members all over the country. The Kolkota bench was irregular for the last 2-3 months and so is the fate of Delhi and Ahmedabad benches. The good work of Bangalore bench is lost sight of, since some of the members are frequently sent to other benches for disposals making their own bench pendency more. Justice delayed is justice denied. The very purpose of creating Tribunals is
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">lost if the cases are kept pending for years together. Even the government is put to loss, as their dear revenue is locked up in appeals. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">If the government cannot improve the situation immediately by recruiting Technical Members, at least they should allow the cases to be heard by the benches showing good disposals by the choice of the respective appellants. If the Mumbai bench can take up some cases of Ahmedabad bench, there will be some disposals. Same can be the case with Kolkata cases to be heard at Chennai or Bangalore so that the pendency can be reduced. Circuit benches are not serving the desired purpose since the disposals vis-a-vis the huge paraphernalia involved is proving it to be uneconomical. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">With the financial year end fast approaching, the life of the assessee- appellants is going to be miserable since department would build pressure for collection of arrears not covered by orders of stay. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Prabhakar Shastry </strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>HUM NAHIN SUDHRENGE !!! (We will not improve) </strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><em>REFUND OF PRE-DEPOSIT ON SUCCEEDING IN APPEAL:</em></strong> In spite of departmental circulars and judgements of various courts that a simple letter will suffice for claiming refund of pre-deposit as consequential relief on succeeding in appeal, the departmental officers still insist or rather harass the assessee to file refund claim in the prescribed format which is a cumbersome and needless process. There is absolutely no point in repeating the umpteen case laws, departmental instructions / circulars etc because the Department simply refuses to mend ways. Yet another case, of HUM NAHIN SUDHRENGE !!! </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Padmini Sundaram </strong></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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