Staying Updated, FTP and WTO newsletter December 2013: Volume 16 Issue 9 News The Central Government is in the process of designing a mechanism for importers to easily pass on cenvat credit of CVD to a manufacturer Judgments not contested by the Department as amounts were below the monetary limit cannot be relied upon by the appellate forum; the Department can agitate the issue in subsequent proceedings on merits Valuation CVD held not leviable on MRP basis when the goods were not covered under the Legal Metrology (Packaged Commodity) Rules, 2011 Others Refund claim in respect of SAD could not be rejected merely on the ground of difference in the language of endorsement about nonadmissibility of cenvat credit on the sale invoice as per the relevant notification Miscellaneous penalty could not be imposed on the importer/ exporter where the authorities had not brought out specific violation of any provision of the Act Foreign Trade Policy Limited Liability Partnership firms included in the definition of Group Company under FTP Duty can be demanded when goods imported by use of DEPB scrips obtained fraudulently by making mis-declaration leviable on import of Polypropylene originating in or exported from Oman revoked from 2 December, 2013
News The Central Government is in the process of designing a mechanism for importers to pass on the cenvat credit of Countervailing Duty in lieu of excise (CVD) to a manufacturer. The Central Government has issued instructions that decisions/ judgements, against which the Department has not filed an appeal as the amount involved was below the monetary limit prescribed for filing of appeal, should not be taken as having precedential value. The Department is at liberty to agitate the issue in subsequent proceedings till the matter is settled on merits. (Instruction No. F. No. 390/Misc. /163/2010-JC dated 12 December, 2013) The Central Government has exempted import of specified anti-tuberculosis drugs and specified diagnostics and equipments from levy of custom duty. The exemption is available on production of certificate from officer of the rank of Deputy Secretary or above in the Ministry of Health and Family Welfare certifying that such goods are required for the Revised National Tuberculosis Control Programme. (Notification No. 49/2013- dated 29 November, 2013) Valuation In Legrand (India) Pvt Ltd v CC (2013- TIOL-1800-CESTAT-MUM), the Mumbai Tribunal held that the importer was not liable to pay CVD on Maximum Retail Price (MRP) basis where the packing of the goods was meant for ease of transportation and not for retail sale, since such goods are not covered under the Legal Metrology (Packaged Commodity) Rules, 2011. Others In Pace International & Ors v CC (2013- TIOL-1752-CESTAT-DEL), the Delhi Tribunal held that adjudication only on the basis of Show Cause Notice (SCN), in the absence of personal hearing was liable to be rejected as it amounted to violation of principles of natural justice. The Ahmedabad Tribunal, in Intermark Shipping Agencies Pvt Ltd v CC (2013- TIOL-1759-CESTAT-AHM), held that miscellaneous penalty under Act, 1962 (the Act) could not be imposed on the importer/ exporter where the authorities had not brought out specific violation of any provision of the Act. 2 December 2013 - Volume 16 Issue 9
The Delhi Tribunal, in CC v Surya Foods & Agro Ltd (2013 (298) ELT 71), held that interest on refund was payable by the authorities after expiry of three months from date of filing of refund application consequent to the appellate authority s order in the assessee s favour. The Delhi Tribunal, in Marathon India Ltd v CC (2013-TIOL-1832-CESTAT- DEL), held that the benefit of notification could not be denied on ground that exemption certificate was not issued by a designated authority, as that was merely a procedural lapse. The Ahmedabad Tribunal, in Shreeji Shipping Ltd v CC (2013-TIOL-1860- CESTAT-AHM), held that where importer discharged the differential duty at the time of clearance of goods along with interest on directions of the DRI officers prior to issuance of notice, subsequent issuance of notice for confiscation was not permissible under the Act as there was no suppression of fact or wilful mis-statement at the time of import. In SRS Industries v CC (2013-TIOL- 1845-CESTAT-MAD), the Madras Tribunal held that the Tribunal did not have the jurisdiction to decide on penalty matter against the importer arising out of short-landing as the provisions in the Act bar the Tribunal from hearing any matter decided by the Commissioner (Appeal) relating to short-landing cases. The Delhi Tribunal, in Singhania Chemicals v CC (2013-TIOL-1853- CESTAT-DEL), held that refund claim in respect of Special Additional Duty of (SAD) cannot be rejected merely on the ground that endorsement on the sale invoice about nonadmissibility of cenvat credit is not in the language required as per the relevant notification since the substantive condition of the said notification is fulfilled. In CC v NTPC (2013 (298) ELT 134), the Delhi Tribunal held that the provisions of notifications have to be construed strictly and in case of ambiguity, the benefit would go to the importer. 3 December 2013 - Volume 16 Issue 9
Foreign trade policy The Central Government has amended the definition of a Group Company under FTP to include Limited Liability Partnerships (LLPs). However, neither partnerships nor proprietorship firm would come within the ambit of definition of a Group Company. (Notification No. 58(RE-2013)/2009-14 dated 18 December, 2013) The Central Government has allowed Human Embryo falling under ITC (HS) code 0511.99.99 to be freely imported subject to obtaining a No Objection Certificate from Indian Council of Medical Research. (Notification No. 52(RE-2013)/2009-14 dated 2 November, 2013) The Central Government has invited suggestions on import of power generating equipment under Export Promotion of Capital Goods (EPCG) Scheme as such imports will not only reduce the overall cost of setting up of a power plant but also reduce the cost of power and ensure uninterrupted power supply. Further, views are also invited on how the export obligation under the EPCG Scheme is to be computed for such imports as power is not exported per se. (Trade Notice No. 08/2013 dated 17 4 December 2013 - Volume 16 Issue 9 December, 2013) The Ahmedabad Tribunal, in Sanmar Speciality Chemicals Ltd v CC (2013 (298) ELT 62), held that the custom duty was payable on empty barrels used for packaging of inputs imported by an Export Oriented Unit (EOU) as these goods were not used in manufacture of export goods. In CC v Dell International Services India Pvt Ltd (2013 (298) ELT 110), the Bangalore Tribunal held that fire detection and quenching system was entitled to exemption from custom duty when imported by an EOU as these goods were in nature of security systems which were allowed for import under notification for EOUs. The Delhi Tribunal, in Samsung India Electronics Ltd v CC (2013-TIOL-1846- CESTAT-DEL), held that duty could be demanded where goods were imported under DEPB scrips that were fraudulently obtained by making misdeclaration. In Unitech Developers and Hotels Pvt Ltd v CC (2013-TIOL-1023-HC-DEL- CUS), the Delhi High Court held that bank guarantee filed in relation to EPCG scheme was to secure payment of differential duty and hence could be encashed in case of breach of condition of exemption notification.
The Ahmedabad Tribunal, in Western Silks v CC (2013-TIOL-1791-CESTAT- AHM), held that in case of overvaluation of export goods by EOU, penalty could not be imposed on the proprietor if penalty has been imposed on the firm, since proprietor and firm are not independent of each other. In Eastron Overseas Inc v CC (2013 (200) ECR 0236), the Delhi Tribunal held that where goods covered by Hazardous Waste Rules, 2008, were imported without prior permission from Ministry of Environment and Forests, the said goods were liable to be confiscated. 5 December 2013 - Volume 16 Issue 9
Notifications The Central Government has revoked the imposition of anti-dumping duty on import of Polypropylene falling under Custom Tariff Heading (CTH) 3902.10.00 or 3902.30.00, originating in or exported from Oman effective from 2 December, 2013. ( (ADD) Notification No. 32/2013 dated 2 December, 2013) 6 December 2013 - Volume 16 Issue 9
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