To arrest first and then proceed with rest is despicable: High Court
05 06 2015
Friday
Service Tax - Threat of Arrest, denial of bail and tarnishing of image - What does Department get out of it?
HERE is a classic case:
A Managing Director of a Company was summoned by the Service Tax Department on 06.02.2014. He appeared on 28.02.2014, 08.05.2014, 20.08.2014, 11.03.2015 etc and claimed the benefit of a circular dated 24.05.2010 whereby the applicability of service tax of laying of cables along with the roads etc. and other electricity connected services had been exempted. But the officials were resorting to arm-twisting and he had deposited some amounts as part payment of the service tax. An amount of Rs.36,82,685/-till 14.08.2014 had been deposited and even Service Tax Voluntary Compliance Encouragement Scheme had been opted for. This slow process of investigation suddenly culminated in the arrest of the MD on 08.04.2015. That is, he was arrested more than one year after he first appeared before the officers in response to summons. All these days, he was not a threat to society or investigation, but suddenly after his arrest his existence in society became a danger and bail was denied to him. His appeal to a Higher Court for bail was also rejected on strong objection from the department.
He, then approached the High Court.
It may be noted that:
1. Show Cause Notice was issued on 23.04.2015, fifteen days after arrest.
2. There was neither a notice nor a quantification of demand on the date of his arrest.
3. The High Court asked the Revenue as to whether any time frame could be indicated as to when the investigation process would be completed or when the adjudication order could be passed or a formal complaint alleging the violations of the provisions of the Act, would be filed. The revenue could not indicate any time frame.
4. The accused had already paid an amount of over Rs. 36 lakhs.
5. The judicial remand had been ordered on 09.04.2015 and no effort, thereafter, has been made to seek any further information from the petitioner.
The High Court made some interesting observations:
1. We feel this attempt at justification of the action by the counsel for the respondents, prima facie at this stage, is unjustified as it amounts to putting the cart before the horse.
2. The hurry to arrest, in such circumstances prima-facie amounts to a punitive measure, prejudging the issue.
3. It is also admitted by counsel for respondent No.2 that after the arrest of the petitioner on 08.04.2015, the judicial remand had been ordered on 09.04.2015 and no effort, thereafter, has been made to seek any further information from the petitioner which goes contrary to the argument that investigation is in progress and his personal custody is required.
4. Once such was the situation, the requirement of arrest for the arrears due for the last more than 4 years, of which, there was no quantification, prima facie, would only infringe on the fundamental rights of the petitioner, as the calculations on the basis of which, he is sought to be arrested, as per the arrest memo, was issued only at his back and without having given him appropriate opportunity to file reply to the show cause notice, which admittedly was issued on 23.04.2015, post his arrest.
5. Further detention of the petitioner, in such facts and circumstances, amounts to taking away his liberty in the absence of any complaint having been filed against him.
6. 'The attitude to arrest first and then proceed with the rest is despicable.'
The High Court released him on bail but on stiff conditions.
The Department can arrest an assessee for no good reason, he will be denied bail for no good reason and the officer making the improper, if not totally illegal, arrest has absolutely no accountability.
Lawyers, fixers, officers - all make merry while the assessee languishes in jail. The threat of arrest is more damaging than arrest itself. One arrest and they can threaten a hundred others with arrest and this is a lucrative business.
Please see Breaking News and 2015-TIOL-1405-HC-P&H-ST
CESTAT has power to restore an appeal, which has been dismissed for any reason including for non-compliance of a deposit order: High Court
CESTAT by an order dated 25.09.2012 directed the appellants to deposit the tax within 8 weeks. By yet another order dated 15.04.2013, the time to deposit the amounts was extended upto 20.04.2013. On 22.04.2013, the appellant filed an application for a further extension. The appellants had failed to deposit the amounts. On 27.04.2013, the appellants deposited the entire amounts. Accordingly, they made an application for restoration of the appeal, which had been dismissed in default on 20.04.2013. There was, therefore, a delay of only 7 days in complying with the orders requiring the appellants to deposit the amounts. The application for extension of time filed on 22.04.2013 and the application for restoration were, however, dismissed by the order of the Tribunal dated 26.09.2013.
The assessee approached the High Court against the dismissal of the appeal and application for restoration.
The High Court observed,
We do not see any reason to deny the appellants an extension of a mere 7 days. It would be grossly inequitable and unfair to deny the appellants an opportunity of having their case heard on merits on account of their having delayed in complying with the order by just 7 days.
The contention that the CESTAT does not have power or jurisdiction to grant an extension of time or to restore the appeal is not well founded .
The High Court noted that as per Section 86(6A)(b), the application fee for an application for restoration of an appeal, is Rs. 500/-. This presupposes the maintainability of an application for restoration of an appeal .
The High Court also referred to Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 which reads as:-
The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice .
The High Court held that the concluding words "to secure the ends of justice" are wide enough to cover cases such as these viz. to grant an extension of time to deposit an amount or to restore appeals dismissed on account of the failure to comply with the orders of pre-deposit.
So, the High Court restored the appeal to the file of the CESTAT to be heard on merits.
Please see 2015-TIOL-1406-HC-P&H-ST
Kamalasagar Notified as Land Customs Station
CBEC has notified Kamalasagar(District Sephaijala, Tripura) as a Land Customs Station.
Notification No.50/2015-CUS(N.T.), Dated: June 03, 2015
Customs - New Exchange Rates from Today
CBEC has notified new exchange rates for Imported Goods and for Export Goods with effect from 5th June 2015. The US Dollar is at 64.75 rupees for imports and 63.70 rupees for exports.
The earlier notification No. 47/2015- dated 21.05.2015 is rescinded
Notification No.52/2015-CUS(N.T.), Dated: June 04, 2015
Notification No.51/2015-CUS(N.T.), Dated: June 04, 2015
FTP -Retrospective Amendments to Foreign Trade Policy 2015-2020
GOVERNMENT has amended the Foreign Trade Policy 2015-2020 with effect from 1st April 2015.
Para 2.06: Mandatory documents for export / import of goods from / into India: Lorry Receipt/Railway Receipt/Postal Receipt added to Bill of Lading/Airway Bill.
Definition of Service Provider. The Foreign Trade Policy defines service provider as person providing:
(i) Supply of a 'service' from India to any other country; (Mode 1- Cross border trade)
(ii) Supply of a 'service' from India to service consumer(s) of any other country in India; (Mode 2 - Consumption abroad). [in India is added now]
(iii) Supply of a 'service' from India through Commercial presence in any other country. (Mode 3 - Commercial Presence.)
(iv) Supply of a 'service' from India through the presence of natural persons in any other country (Mode 4 - Presence of natural persons.)
DGFT Notification No.8/2015-2020., Dated June 04 2015
FTP - Export of items on free of cost basis
GOVERNMENT has amended the Foreign Trade Policy 2015-2020 para 3.24(j) to limit the Entitlement of Status Holders to export freely exportable items on free of cost basis.
The para now reads as:
(j) Status holders shall be entitled to export freely exportable items on free of cost basis for export promotion subject to an annual limit of Rs. 10 lakh or 2% of average annual export realisation during preceding three licensing years, whichever is lower. (This was higher earlier).
Similar amendment is also made in para 2.84 of the Handbook of Procedures (HBP) 2015-20
DGFT Notification No.9/2015-2020 ., Dated June 04 2015
DGFT Public Notice No.18/2015-2020 ., Dated June 04 2015
FTP - Amendments in Handbook of Procedures (HBP) 2015-20
DGFT has amended the Handbook of Procedures of FTP 2015-20, to make several procedural changes, applicable with effect from 1st April, 2015.
The heading of Para 1.07 earlier read as, "Separate applications from EDI and on EDI ports". Now it reads as, "Separate applications from EDI and Non EDI ports".
No clubbing of Authorisations issued on or before 31st March, 2009 shall be allowed. Cases already considered by PRC shall not be re-examined.
DGFT Public Notice No.16/2015-2020 ., Dated June 04 2015
FTP - Amendments in Handbook of Procedures (HBP) 2015-20 - transitional arrangements
AMENDMENTS to the Handbook of Procedures of FTP 2015- 2020, have been notified, in order to facilitate transitional arrangements in respect of filing of applications and validity of Status Holder Certificate. These amendments shall be deemed to have come into effect from 1st April, 2015.
As a measure of transitional arrangement, exporters may file application manually, till EDI online module is ready or upto 30th September, 2015 whichever is earlier.
DGFT Public Notice No.17/2015-2020., Dated June 04 2015
GST - Empowered Committee Meet - States Want Compensation for Five Years
THE empowered committee of State Finance ministers under the Chairmanship of Kerala Finance minister, KM Mani met in New Delhi yesterday. After the meeting, Mr. Mani said, "Most of the states welcome GST. However, there are concerns regarding compensation. The Central government says that it will be given in a phased manner, while states are demanding full 100 per cent compensation for five years."
The States have expressed concern on certain vital aspects:
1. Some States want entry tax and purchase tax to continue and not get subsumed in GST.
2. If these taxes are merged, Centre should give compensation for 15 years.
3. Some States want the right to levy extra tax on tobacco and tobacco products over and above the applicable GST rate.
4. Manufacturing states want the origin-based 1% tax on exports. But some states have expressed concerns on that.
Mr. Mani is to meet the Select Committee of the Rajya Sabha on June 16th.
But is the babudom ready? We have just nine months to go. A senior officer connected with the technological part of GST told me, "we are GST ready!" I could find a trace of sarcasm there.
Tribunals in Bad Shape - Parliamentary Panel
THE Parliamentary Standing Committee in its recent report on the Tribunals, Appellate Tribunals and Other Authorities (Conditions of Service) Bill, 2014, made some interesting observations and recommendations.
Except Income Tax Appellate Tribunal and National Industrial Tribunal all other statutory bodies under the First Schedule have been set up after 1976, while most of them having been constituted by Acts of Parliament under enabling Articles of 323A and 323B of the Constitution which were inserted by 42nd Constitutional Amendment.
Tribunals are not part of regular judicial system but are alternate dispute resolution mechanisms created mainly for expeditious disposal of cases under the concerned Act under which those have been set up. Even though some of them are complemental and supplemental to the High Court, they are within the supervisory/writ jurisdiction of the concerned High Court under Articles 226 and 227 of the Constitution.
Some of the Tribunals i.e., National Highway Tribunals, Cyber Appellate Tribunal and Airport Economic Regulatory Appellate Authority are dys-functional due to vacancies therein. The post of Presiding Officer in all eight Benches of National Highway Tribunal (which is a single Member Bench) located at Chandigarh, Lucknow, Kolkata, Mumbai, Jabalpur, Bengaluru, Chennai and Guwahati are lying vacant. The post of Presiding Officer in Cyber Appellate Tribunal is vacant since July, 2011. Therefore, it cannot function in the absence of its Chairperson in view of Section 49 of Information, Technology Act, 2000. The Competition Appellate Tribunal was assigned additional charge of Airport Economic Regulatory Appellate Authority since its inception till 20th August, 2014. Now it is dysfunctional.
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The Committee expresses its concern over the sad state of affairs in the Tribunals/Commissions. Some of them are dysfunctional due to large-scale vacancies. Some of the bodies cannot function without the presiding officer in view of the position in the respective Acts. The post of presiding officer of Cyber Appellate Tribunal is vacant therefore the body is dysfunctional in view of Section 49 of Information Technology Act, 2000.
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The Committee has been apprised that most of these Tribunals have not been provided with adequate residential accommodations, proper office infrastructure or adequate supporting staff, many of the posts of those bodies are lying vacant and also cases are mounting in those bodies and the purpose for which those bodies were created have been defeated.
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It is time for Government to provide necessary infrastructure, human and financial resource to the Tribunals for speedy delivery of Justice.
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The authority in decision making of Government should endeavour to deliver fair justice in their day to day functioning and decision taking by proper application of rules, regulations, judicial precedents, directions, etc., as a result of which appeals against their decision could be reduced to minimum and cases before Tribunals will substantially go down.
What a dream!
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Until Monday with more DDT
Have a nice weekend.
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