The Customs Department issued Public Notice No. 07/2020 dated 18 February 2020 directing action for recovery of inadmissible duty credit given under incentive and rewards scheme under Foreign Trade Policy (‘FTP’) on re-import of exported goods.
The C&AG of India had highlighted this issue in his Audit and observed that there was no provision in the Customs notification to recover the duty credit given under reward and incentive schemes under FTP at the time of re-import of such goods on which such benefit had been availed at the time of export.
Upon realization of this issue, the same was consulted with the Directorate General of Foreign Trade (‘DGFT’) which administers the reward scheme under the FTP. The DGFT informed that the Reserve Bank of India already has a provision regarding refund of incentive taken from DGFT for such re-imports. It was further informed by DGFT that a procedure for obtaining ‘no-incentive certificate’ from Regional Authority (‘RA’) of DGFT has been prescribed for such cases of re-import. Accordingly, in cases of re-import of exported goods a ‘no-incentive certificate’ from the respective RA shall be submitted by the importer.
Lastly, the Customs Department has directed the relevant authorities to review the past cases of re-import of exported goods and consequent action for recovery of inadmissible duty credit.
The West Bengal Tribunal has held that where two separate contracts are entered into for sale of goods and works services, they shall be treated individually as per their nature. It was further observed by the Hon’ble Tribunal that even in case of intentional arrangement of separate orders, the authority has nothing to interfere therein if those are within the legal frame.
GLS Remarks:
The matter relating to supply / sale of goods along with other interior / installation works services has been a matter of perpetual litigation. Even though various HCs and the SC have held that two separate contracts shall be treated separately basis their nature, the authorities have been observed to take a conservative view.
In the instant case, the WB Tribunal has rightly observed that as long as assessee strategize to save tax within the boundaries of the legal framework, they shall not be liable to action by the Revenue.
Pursuant to the introduction of the Direct Tax Dispute Resolution Scheme, Vivad se Vishwas 2020, a notice has been moved in the Parliament on 14 February 2020 to effect certain changes in the Bill. These changes are subject to the approval of the Parliament and the assent of the Hon’ble President thereafter.
The Amendment Bill has proposed to change the definition of the term ‘Appellant’ so as to include various other disputes under the ambit of the Vivad se Vishwas Scheme. The Amendment Bill further proposes to change the definition of the term ‘disputed tax’.
GLS Remarks:
Post the introduction of the Vivad se Vishwas Scheme for Dispute Resolution under the Direct Tax regime, it had been contemplated that the said scheme was somewhat rigid and not as beneficial as compared to its indirect tax regime Scheme counterpart, which was a huge success.
Accordingly, a notice has been moved in the Parliament to make necessary amendments in the Bill to make the same more lucrative for declarants to avail the benefit.
The Ministry of Corporate Affairs (‘MCA’) vide Order dated 25 February 2020, has notified the Companies (Auditor’s Report) Order (‘CARO’), 2020, in supersession of CARO, 2016. This Order issued by the MCA casts additional responsibilities on the Auditors for more transparent disclosure in the Audit Report.
GLS Remarks:
The erstwhile CARO 2016 required reporting on all fixed assets, however, this new CARO emphasizes on disclosures with respect to Property, Plant, Equipment and intangible assets. Under this CARO, 2020, Internal Audit gains more focus, and its work extent is likely to increase. Therefore, Companies need to have a responsive mechanism to implement internal audit suggestions. In order to abide by the same, it is anticipated that Companies would require to invest in good accounting staff. Further, as a measure, Unlisted Companies / Private Limited Companies with huge working capital borrowings should may also opt to prepare quaterly financial statements and get it audited for periodical review.
The auditors conducting audit of a Company u/s. 143 of the Companies Act, have certainly been burdened with additional responsibilities by the introduction of the new CARO on the management as well as the auditor, however, the same can be said to be of paramount importance if viewed by the international standards of auditing.
The Hon’ble Gujarat HC quashes the levy of IGST and Compensation Cess on the import of capital goods made under the EPCG Scheme. Holds that the Petitioner is entitled to the refund of IGST paid by him between the period 01 July 2017 to 13 October 2017.
The Hon’ble HC observed that though the Notification is a statutory notification issued, it is not an exemption notification simpliciter, but an exemption notification issued to give effect to the EPCG Scheme floated under the Foreign Trade Policy which is an incentive scheme.Â
GLS Remarks:
The very objective of the EPCG Scheme is to facilitate import of capital goods for producing quality goods and services to enhance India’s export competitiveness. Thus, a notification, which essentially restricts the objective of the scheme shall not be sustainable. Since the Notification levying IGST on import of capital goods under EPCG was short lived, it is unlikely that this judgment would be challenged by the Revenue Authorities.
Basis this judgment, it is to be seen that whether the CBIC officially quashes the Trade Notice which levied IGST on import of capital goods under EPCG, and thereby automatically granting refund of IGST paid by importers during the period 01 July 2017 to 13 October 2017 or whether the Importers would be required to approach their jurisdictional HCs to issue necessary directions to the Departmental authorities.
Recently, the Government of India has introduced the Rebate of State and Central Taxes & Levies Scheme (‘RoSCTL’) specifically for garments industry, in order to offset high freight cost and other externalities to international markets with a view to enhance India’s competitiveness globally.
In line with the objective of the said Scheme, the CBIC has issued a Notification for exemption from customs duty and additional duty upon imports against scrips issued by the RoSCTL subject to the fulfillment of certain conditions.
The Hon'ble Madras HC has permitted a taxpayer to upload his Form TRAN-1 and avail transitional credit without the requirement of submitting evidence of technical glitches. The Hon’ble Court took note that the era of GST is in a nascent stage and both the Revenue as well as Assessees are still learning the ropes. Therefore, a rigid view should not be taken in matters involving procedural requirements such as availment of credit. This Hon'ble Court emphasized on the principle that mere procedural lapse cannot lead to denial of significant benefit to an assessee.Â
GLS Remarks:
This judgment is welcome by the Trade and Industry with open arms as it provides a huge relief for taxpayers who could not carry forward their CENVAT credit into GST regime due to technical glitches, but had no evidence of the same. Earlier, various High Courts had allowed the filing of declaration in Form TRAN-1 on submission of evidences of technical difficulties faced by Assessees [Siddharth Enterprises (C/SCA/5758/2019)] [Adfert Technologies CWP No. 30949 of 2018)]. However, in this judgment, the Hon'ble Madras HC went up a notch by allowing the declaration without evidence of technical glitches. This reaffirms the settled principle in law that CENVAT credit is a vested right of an asseesee and mere procedural lapse cannot lead to denial of substantial benefit.
It is now to be seen whether the CBIC takes note of this judgment and open the window for filing of form TRAN-1 for all taxpayers or whether the affected taxpayers would be required to approach the Courts seeking a direction for acceptance of the declaration in Form TRAN-1.
The Hon’ble Madras HC holds that provision relating to interest on delayed payment of tax under the CGST Act applies only to the cash component of tax remitted belatedly and not ITC. It was observed that the term ‘delayed’ connotes a situation of deprival whereas availability of ITC runs counter to this. It has further been held by the Hon'ble HC that such amendment made to Section 50(1) of the CGST Act is clarificatory in nature and therefore, should be read as having retrospective effect from the date of implementation of GST.
GLS Remarks:
GST Council in the 31st meeting recommended to amend Section 50 of the CGST Act, 2017 to charge interest on net tax liability. It is important to note that such an amendment could not be incorporated in the law. Further the CBIC had vide its internal circular dated 10th February 2020 issued to Principle Commissioners and Chief Commissioners, had instructed to recover an outstanding interest on amount of tax liability which is paid belatedly based upon the amount of liability as declared in form GSTR 3B i.e. on gross liability declared in GST return.Â
Recently, the CBIC has clarified vide their tweet dated 15 February 2020 that basis the recommendation of GST Council the Centre and States to amend the respective GST law to charge interest on net tax liability. Further, it has been clarified that such amendment would be made prospectively.Â
It is important to note that while the order of Hon'ble Madras HC allowed payment of interest under Section 50 of the CGST Act on net tax liability and held such amendment to be effective retrospectively, it appears that the Government intends to implement the amended Section 50 of the CGST Act prospectively. Such view held by the CBIC will put onerous burden on the taxpayers and is likely to lead to further litigation on this matter.Â
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Maharashtra AAR holds that electric transformers supplied to the Indian Railways are classifiable under Heading 8504 chargeable to 18% GST and not under Heading 8607. The Ruling Authority has noted that as per the Circular issued by the CBIC, only those goods which as are classifiable under heading 8607 and supplied to the Indian Railways would attract 5% GST with no refund unutilised credit.
GLS Remarks:
Classification of goods for exclusive use of Indian Railways has been a matter of perpetual litigation. Such confusion is mainly attributable to the two contradictory Notes in Section XVII which inter alia covers Chapter 86. On one hand, Note 2 of the said Section excludes items of general use classifiable different headings from the purview of Chapter 86, whereas, on the other hand, Note 3 provides that the items, when classifiable under more than two Headings shall be classified basis their principal and exclusive usage, leading one to conclude that items used exclusively for Railways shall be classified under Chapter 86.Â
The Authorities of Advance Ruling under GST have time and again preferred Section Note 2 of Section XVII. A couple of such judgments are referred to below:
Such litigation existed in Pre-GST Era as well, wherein various judicial forums have given preference to Note 3 of Section XVII. A couple of such judgments are referred to below:
This makes it clear that the department would always take a pro-revenue position to classify Railway products in Headings other than Chapter 86. It appears that this confusion could be cleared only by a clear and unequivocal judgment of the High Court / Apex Court.
The Government of India has time and again emphasised that it is keen at relooking at all quality standards for goods and services in order to balance the interest of consumers with that of the industry which will enable the culture of quality to take root in the country and production or import of substandard products and services will not be tolerated any longer.Â
In line with the above objective of the Government to impose controls on quality of production of goods in India, the Ministry of Commerce and Industry, recently has issued two Notification dated 21 January 2020, which brings the domestic pressure cookers and various types of cables under the purview of Bureau of Indian Standards.
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