Previous B.1 to B.18 and B.19 to B.36
B.37 – Bhopal Zone – Central Excise Rules & Procedures – Doubt regarding Computation of Penalty under Rule 8(3A) of Central Excise Rules, 2002, When Period of Delay Involves Part of a Month:
Rule 8(3A) of the Central Excise Rules, 2002 provides that
“If the assessee fails to pay the duty declared as payable by him in the return within a period of one month from the due date, then the assessee is liable to pay the penalty at the rate of one percent on such amount of the duty not paid, for each, month or part thereof calculated from the due date, for the period during which such failure continues.
Explanation – For the purposes of this sub-rule, “month’ means the period between two consecutive due dates for payment of duty specified under sub-rule (1) or the first proviso to
sub-rule (1) as the case may be,,
The point of dispute in the said Rule 8(3A) is the calculation of penalty for each month or
part thereof which can be interpreted in the following two ways –
(a) Penalty is to be charged and collected by taking part of a month as one full month.
(b) No of asessees are not in agreement with aforesaid view and are paying penalty @
1% on actual no of days of failure to pay the duty calculated on prorate basis as this r view is supported by the judicial decisions of the CESTAT and High Courts on the interpretation of the phrase “part of the month”.
It is suggested that the phrase “for every month or part thereof ” be read down as ” for
every month or part thereof considered on a pro rata basis.”
Discussion & Decision
The issue was discussed and it was noted that there was variance in the practice of calculation of penalty under rule 8(3A). There are court cases wherein it is provided that calculation for part of the month for levy of interest should be done only for the number of days of delay and not for the full month. Case of BPL Mobile Cellular Ltd [2005(183) ELT324] may be referred in this regard. However, such judgments relate to payment of interest and not to payment of penalty. The character of tax, interest and penalty has been explained by Hon’ble Supreme Court in case of Pratibha Processors [1996 (86) ELT 88]. Para 13 of the judgment is relevant and is reproduced below – “13. In fiscal Statutes, the import of the words — ‘tax’, ‘interest’, ‘penalty’ etc. are well known. They are different concepts. Tax is the amount payable as a result of the charging provision. It is a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law. Penalty is ordinarily levied on an assessee for some contumacious conduct or for a deliberate violation of the provisions of the particular statute. Interest is compensatory in character and is imposed on an assessee who has withheld payment of any tax as and when it is due and payable. The levy of interest is geared to actual amount of tax withheld and the extent of the delay in paying the tax on the due date. Essentially, it is compensatory and different from penalty — which is penal in character.” It is in this background that courts have directed that interest should be charged only for actual no of days of delay as revenue is entitled for compensation for actual number of days of delay only. However, penalty has a different character. Once it is prescribed in law, the quantum cannot be changed as it is penal in nature and is considered mandatory penalty. Therefore, even for default of a part of a month, penalty for the full month shall be recovered.
B.38 – Chennai Zone and Coimbatore Zone – Central Excise Rules & Procedures –
Amendment of Rule 12 of Central Excise Rules, 2002:
At present filing of Central Excise returns by all assessees are being done through ACES. Errors and omissions after the filing of periodical returns such as ER1, ER2, ER3, ER8 etc. cannot be rectified because there is no provision in the Rules for such correction. Whereas Rule 7B of Service Tax Rules, 1994 allows revision of return to correct a mistake or omission within a period of 90 days from the date of submission of return. A provision to revise the returns within a stipulated time may be provided in Rule 12 of Central Excise Rules, 2002 to give an opportunity for the assessees to rectify any mistakes or omission before the last date of filing the next return. It was suggested that a proviso may be added at the end of Rule 12 as “The assessee who files the return as per this provision may revise the return to correct a mistake or omission on or before the due date of filing the next return.”
Discussion & Decision
Service tax return is filed on half yearly basis whereas excise return is filed on monthly or quarterly basis. The nature of the assessee in Service tax and Central Excise is also different as a manufacturer often has better qualified compliance team. Therefore the need for revision of return is not as pressing in Central Excise. Further, the nature of revision would also be a relevant issue for consideration. Whether revision should be allowed for all elements of the return including turnover and tax liability or should it be allowed only for bona-fide and clerical mistakes needs to be examined. The conference concluded that a blanket provision for revision of all the prescribed returns may not be desirable and may complicate the compliance regime in Central Excise. The issue would also involve changes in ACES and would need consultation with DG, Systems. The conference concluded that a more nuanced view needs to be taken on the subject after collecting inputs from various stake holders. Conference suggested that policy wing in the Board may take further action as deemed fit.
B.39 – Coimbatore Zone – Central Excise Rules & Procedures-e-payment of Excise Duty
against Incorrect Assessee code Rectification -Regarding:
E-payment of excise duty was introduced with effect from April 2007. Under the e-payment system if an assessee enters an incorrect assessee code number (ECC) while making payment there are no clear instructions on the procedure and the mode to be adopted for rectifying the mistake. The Office Memorandum issued by the Principal Chief Controller of Accounts, CBEC, New Delhi envisages formulation of modalities to be followed while keeping track of such type of cases by the Commissioners. The avowed policy of the Government is to promote ease of doing business. Therefore, keeping in consonance withthe above policy it is felt that a uniform procedure to rectify the mistake committed by an assessee may be formulated by the Board and provided in automation mode.
Discussion & Decision
The conference after due deliberations concluded that this is a long standing problem with the assessee and needs to be addressed. It was decided that Coimbatore zone should make a reference to the Board with complete set of correspondence made with Pr. CCA on the issue for further examination and issuance of necessary instructions/circular in this regard in consultation with Pr CCA.
B.40 – Kolkata Zone – Central Excise Rules & Procedures – Penalty for default under Rule
8(3A) of Central Excise Rules, 2002:
There is no stipulation of the period in the rule for which the default or failure to pay duty can continue after which coercive action for recovery can be taken. Rule 8(4) of the said rules provide for applicability of the provisions of section 11 of the Central Excise Act, 1944 but here too, no specific time limit has not been prescribed for application of the said rule. It is suggested that the rule should incorporate a specified time limit for such default after which coercive recovery can be made. Further, penalty should be graded in nature say for the first month @ 1% on the amount of duty not paid, on the second month @ 2% and so on. Such escalated penalty would act as deterrence for the frequently defaulting assessees.
Discussion & Decision
The conference after due discussion did not agree with the proposal to amend the rule and provide for escalation in penalty for continued default. With regard to implementation of the rule as it exists, it was noted that non-payment of duty duly reflected in a Return is a case of admitted liability. Provisions of section 11A(16) introduced in the budget of 2015 are relevant in this regard wherein it has been provided that provisions of section 11A do not apply for duty which has been self assessed, reflected as payable in the Return but has not been paid. The implication of this sub-section is that for admitted liabilities no show cause notice and adjudication proceedings need to be undertaken. For such liability, provisions of rule 8(4) of the CER, 2002 apply. This rule provides that provisions of section 11 of the Act shall be applicable for recovery of duty, interest and penalty in case of default. The conference concluded that recovery of admitted liability thus can be initiated forthwith once the return has been filed and duty shown payable has not been paid. As the legal empowerment is available, necessary recovery can be made forthwith.
B.41 – Vishakhapatnam Zone – Central Excise Rules & Procedures – No penalty for non-filing of NIL return:
Rule 12(6) of Central Excise Rules envisages imposition of penalty for non-filing of returns irrespective of either NIL or otherwise. Under the Finance Act there exists proviso to Rule 7C of Service Tax Rules, 1994 that “where the gross amount of service tax payable is nil, the Central Excise officer may, on being satisfied that there is sufficient reason for not filing the return, reduce or waive the penalty”. In view of the above, the Rule 12(6) may be modified in line with Rule 7C of Service Tax Rules. No penalty for not filing NIL return may be considered.
Discussion & Decision
Conference after discussion referred to the different nature of assessee in Central Excise and Service tax. A Central Excise assessee has better set-up for compliance and therefore it is expected that returns including NIL return would be filed in time. Therefore, it was decided that the Central Excise provision need not be amended as it was working well.
B42 – Lucknow Zone-Implementation & Other Related Issues-Non availability of any expert facility for determining the speed of FFS machine under Compounded Levy Scheme:
Sponsoring Zone explained that presently there are more than 2 slabs of duty on pan masala, gutkha and chewing tobacco based on the number of pouches packed per minute on the FFS machines. It is seen that most of the assessees declare their packing speed at 500 to 600 pouches per minutes. In view of this, the duty slabs may be reduced from three slabs at present to two viz one for packing speed up to 500 pouches per minute and another for more than 500 pouches per minute as no expert facility for determining maximum speed of FFS machine is available with the field officers .
Discussion & Decision
It was informed by the sponsoring zone that software inbuilt in the FFS machine is used to reduce the speed of the machine at the time of inspection by Central Excise Officers, whereas the machines are operated at higher speed before or after such inspection. It was pointed out that Central Excise Officers, not being technical experts in the field, were neither able to confirm nor deny the claim of the assessee regarding maximum speed in absence of manufacturer’s catalogue specifying the capacity etc. of the machine. Manufacturers of the machine do not specify any technical specifications including maximum speed, capacity etc. While appreciating the above concerns of the zone, the conference did not agree with the suggestion of the sponsoring zone to reduce the number of slabs of speed to lesser number of slabs as it would not address the issue of miss-declaration of speed. The slabs were fixed only in the last one year after detailed study and certainty in taxation required that frequent changes should not be made in the duty structure. It was decided that besides measuring the speed, assessees may be asked to furnish manufacturer’s certificate or chartered engineer’s certificate to verify the speed.
B43 – Chennai Zone- Implementation & Other Related Issues – Mismatch in UQC with
regards to Matches:
There is a mismatch in the Unit Quantity Code (UQC) as per the Central Excise Tariff and the UQC adopted in trade parlance, with regard to matches. The UQC is “Kg” in Tariff, whereas in practice it is in boxes of 50 sticks. The trade sells products in units pack only. Therefore, it is felt that the Unit Quantity Code prescribed in the Central Excise Tariff be changed from Kg to boxes as this would be in tune with the practice adopted by the Trade. It was suggested that Unit Quantity Code in the Central Excise Tariff may be amended to “Boxes of 50 sticks.”
Discussions & Decision
After discussion the conference concluded that there was not enough statistical data available to conclude that such change was necessary. Chennai Zone, was advised to provide statistics as to quantum and frequency of such mismatch and difficulties faced due to the mismatch. Based on such feedback, Board will look into the matter and decide if there was any need to change the UQC.
B.44- Chennai Zone- Implementation & Other Related Issues -Matches – Inverted Duty
Structure in matches:
The sponsoring zone explained that most of the manufacturers of matches are availing
CENVAT credit in respect of the following inputs at the given rates :
(i) Pottasium Chlorate 12%
(ii) Wax 14%
(iii) Paper Boards 6% and 12 % as the case may be (iv) Wrapper 6% and 12 % as the case may be, etc
Whereas the rate of duty for matches manufactured by semi mechanized sector is @6 % .This leads to inverted duty structure and consequently payment of duty in cash is negligible. The cash component of the duty has also fallen over the years on account of the gradual inclusion of various processes associated with manufacturing getting included for availing credit while the scope of concessional rate of duty has expanded.
Discussion & Decision
The conference noted that there are different rates of duty for matches manufactured by manual process, semi-automatic process and automatic process. These rates have a certain ratio and have been fixed after studying the industry in detail. Therefore, it would not be desirable to change the rates without a detailed study of various inputs, processes and proper calculation of duty inversion, if any. It was decided that the sponsoring zone would provide the statistical data and analysis pertaining to value addition, quantity of raw material used and duty structure etc. Based on the data further decision would be taken in the Board on the subject.
B.45 – Chennai Zone-Implementation & Other Related Issues-Redrafting of CBEC’s
The CBEC’s Excise manual of Supplementary Instructions 2005 stipulates procedures to be followed on various aspects w.r.t. registration, invoice systems, etc. For instance, Chapter 4 – CBEC’s Supplementary Instructions stipulates prior intimation of serial numbers of invoices, maintenance of different invoice books, submission of cancelled invoices within 24 hours of cancellation etc. Similarly, Chapter 7 stipulates annual filing of Letter of Undertaking [LUT] for effecting exports, filing of ARE-1 in respect of exports made under self-sealing to the Range Officer within 24 hours, etc. Such conditions have lost relevance with the advent of self-assessment and they also expend considerable compliance time and paperwork. Therefore, the Supplementary Instructions should be revamped with an objective to dispense with redundant procedures and in place prescribe online filing of intimation, LUT, bonds, etc to reduce transaction cost. Supplementary instruction also needed to be revised to make it consistent with subsequent legal changes.
Discussion & Decision
It was decided in the tariff conference that that after taking inputs from the field Supplementary Instructions would be examined for revisionwith the objective of providing solutions to the problems faced by the field. Chapter wise instructions would be circulated by the policy wing among the field formations for examining and proposing changes in the instructions. The policy wing would compile the proposals.
B.46 – Chennai Zone-Implementation & Other Related Issues-Monetary limit for filing appeal before Commissioner (Appeals).
At present there is no prescribed minimum monetary limit for filing appeals with Commissioner (Appeals) which results in frivolous appeals involving small amounts. In order to reduce small cases at the level of Commissioner (Appeals), a proviso may be inserted in Section 35A of the Central Excise Act, 1944, prescribing a monetary limit of Rs.1 Lakh for filing of appeal before the Commissioner (appeal). With reference to the Tribunal, similar provision exists in the second proviso to Section 35B which prescribes monetary limit of Rs.2 Lakhs for CESTAT.
Discussion & Decision
It was concluded in the conference that there may be cases of small amounts where confirmation of demand could be unfair. Assessee should not be deprived of his right to appeal at the first stage on adjudications by DC/AC/Supdt. If the idea was to decrease the number of appeals before Commissioner (Appeal), then it can also be achieved by addressing the quality of adjudication orders. However, it was decided to suggest that Board examine the proposal of fixing monetary limit with regard to appeals filed by the department.
B.47 – Hyderabad Zone-Implementation & Other Related Issues-Period of Condonation of
Delay in Payment of Pre-deposit; Sec.35F of Central Excise Act, 1944:
As per the provisions of new Sec.35F of CEA, 1944, which came into effect from 06.08.2014 (inserted vide Sec.105 of Finance Act, 2014), the Tribunal or Commissioner (Appeals) as the case may be, “shall not entertain” any appeal unless the appellant deposits seven and half percent (7.5%) of the duty and penalty. The appellant has to pay ten percent (10% ) of the duty and/or penalty in case it is second level of appeal [against the order of the Commissioner (Appeals)]; subject to a maximum of Rs.10 Cr.
- The provision is harsh for the trade and is also prone to litigation. Many assessees are ofthe view that they have time till the first hearing of the case for making the mandatory pre- deposit. On the other hand, at present an appeal is considered incomplete without proof of payment of pre-deposit. In order to alleviate possible litigation and to ensure that due payment of the pre-deposit can be made with convenience by the assessee, it is felt that a further period 30 days from the date of expiry of the normal appeal period should be inserted as 3rdproviso to Sec 35F. Further, the appeal in the CESTAT comes up for first hearing after a gap of couple of years and therefore it would be reasonable to allow the assessee to pay pre-deposit till such time.
Discussion & Decision
The conference noted that after the amendment the new provisions, trade and department have just settled with the new provisions. Since the amendment in the law was made only last year, at present no further change in law was recommended in the conference.
B.48 – Hyderabad Zone-Implementation & Other Related Issues – Section 11 AC of the
Central Excise Act 1944 – Penalty in Cases Concerning Erroneous Refund:
It is requested to consider omitting the words “or erroneously refunded” appearing in clause (a) sub-section (1) of the Section 11AC of the CEA, 1944 which deals with cases of normal period. Erroneous refunds would not be for reasons other than suppression/fraud etc on the part of the claimant and therefore provisions for normal period of time were of not applicable. On the other hand if the erroneous refund was on account of the error of the refund sanctioning authority, the claimant should not be liable for penalty under Section 11AC (1)(a) of the CEA,1944.
Discussion & Decision
The issue was discussed and it was noted that the minimum penalty under the provision 11AC(1)(a) is only rupees five thousand. Assessee has the option of not paying even this small penalty by repaying the excess refund any time before the issuance of show cause notice or within thirty days of issue of SCN. A wrong payment of refund cannot arise unless a wrong claim or exaggerated claim for refund has been filed by the assessee. Even if such wrong claim is made inadvertently,a small penalty for contravention of rule/procedure etc can be imposed as it is a civil offence. It is only for offences entailing criminal liability that mens-rea is required to be proved. Therefore, it was concluded in the conference that no change in the present law is needed.
B.49 – Mumbai II Zone- Implementation & Other Related Issues-Introduction of Time Limit for Compliance of Provisions of Notification No. 43/2001-CE (NT) dated 26.06.2001:
Notification no. 43/2001-CE (NT) provides for procurement of inputs (goods) without payment of duty for the purpose of use in the manufacture or processing of export goods. The said notification specifies the conditions, safeguards and procedures for procurement of duty free inputs for the intended purpose. The said notification inter alia vide condition no (ii) stipulates that provisions of the Central Excise (Removal of Goods at Concessional rate of duty for manufacture of Excisable goods) Rules 2001 shall be followed mutatis mutandis.
It is observed that the said Central Excise (Removal of Goods at Concessional rate of duty for manufacture of Excisable goods) Rules 2001, does not contain a time limit for completion of process of manufacture of finished goods and disposal of goods(inputs) that have been procured duty free as per provisions of the above said Rules. The Rule 6 of the said rules has a provision for recovery of duty, if goods are not used for the intended purpose. As per Rule 6 of the said Rules, the provisions of Section 11A and 11AA of Central Excise Act 1944 shall apply mutatis mutandis for effecting such recoveries. In absence of any time limit for export of goods, it not only becomes difficult but impossible for the field formations to keep proper track of records and verify the proper use of the inputs by them duty free in the past. Lack of such provision may pave way for unscrupulous manufacturers for misuse of duty free procurement of inputs. In case of Customs, an importer has an obligation to export the goods within certain time limit of import or raw materials obtained duty free under certain schemes like DEEC etc.
It is suggested that a time limit for completion of manufacture/processing and export of finished goods from the date/period of procurement of duty free goods (inputs) may be incorporated in the aforesaid notification. In order to make the provisions of notification no. 43/2001 supra in harmonization with section 11A time limit of 1 year for export of goods may be introduced. Similarly, an amendment in Rule 6 of the said Rules may also be made to specify the time limit of one year for the intended purpose by the manufacturer from the date of receipt of such goods.
Discussion & Decision
Use of the goods within a specified time limit is not the intention of the Central Excise (Removal of Goods at Concessional rate of duty for manufacture of Excisable goods) Rules 2001 as no such provision has been made in the said Rules. Erstwhile chapter X procedure under central excise also had no such stipulation and no time limit for use of the goods procured was specified. The issue of is regarding recoveries required to be made after the lapse of limitation period specified in section 11A. The conference discussed the issue and after discussion concluded that in such cases of non-fulfillment of the condition in the notification, duty can be demanded without any period of limitation. As provided in rule 6 , Section 11A applies to the case “mutatis mutandis” i.e. with such changes as are necessary for affecting such recovery. In the present case, the change required to be read in Section 11A would be regarding the period of limitation prescribed. The period of limitation would not apply.
It was also noted that the issue is well settled judicially also in case of Bombay Hospital Trust Vs Commissioner of Customs, Sahar, Mumbai [2005 (188) E.L.T. 374 (Tri. – LB)] wherein it has been held that in case of demand of duty under an exemption notification which casts continuous obligation, limitation under Section 28 of Customs Act, 1962 is not applicable. The tribunal had noted that in such cases the duty demand does not relate to short levy or non-levy at the time of initial assessment on importation, but arises subsequently on account of failure to fulfill the post-importation conditions and therefore limitation prescribed in Section 28 has no application. The conference noted that demand of duty is made in such cases in terms of the bond executed to avail of the exemption and for this reason also the limitation prescribed in section 11A would not apply. It was accordingly concluded that there is no need for changing the rule and demand of duty can be made without any period of limitation, if the end use condition is not satisfied.
B.50 – Implementation & Other Related Issues- Reassignment of Cases for Adjudication by Chief Commissioner and Reassignment of Cases for Adjudication by Commissioner.
The issue regarding competence of Chief Commissioner and Commissioner for to
reassignment cases for adjudication amongst different Commissionerates was discussed.
Discussion & Decision
After discussion of the legal provisions and delegated power with the Chief Commissioner it
was concluded that –
(i) Audit Commissioners of Central Excise do not have powers to adjudicate and cannot be assigned any case for adjudication.
(ii) In exercise of powers of the Board, delegated to the Chief Commissioner vide notification no. 11/2007-C.E(N.T) dated 1.3.2007, Chief Commissioner may assign cases from one Commissioner to another for expeditious adjudication, when pendency is large and such reassignment is necessary. Similarly, the Chief Commissioner may reassign cases for levels below the Commissioner from one Commissionerate to another within his zone. Appropriate orders would be required to be issued for such reassignment of cases. Chief Commissioner can
also issue orders appointing common adjudicating authority within his zone .
(iii) Powers to assign cases amongst officers within a Commissionerate would fall within the administrative competence of the Commissioner. Appropriate order would be required to be issued in this regard.
B.51 – Implementation & Other Related Issues -Change in the practice of assessment :
There are instances where individual Commissionerates or offices say a Division, change a long standing assessment practice. After changing the assessment practice such assessee may also be issued a show cause notice which is unfair situation for the business of the assessee. The Conference was requested to discuss this situation and suggest appropriate course of action in this regard.
Discussion & Decision
The conference discussed the issue in detail and noted that change in assessment practice which changes a long standing assessment practice which has prevailed across various zones should be strictly avoided. Any such proposal for a change should have approval of the higher officers of the zone say Commissioner or Chief Commissioner. Before making such change it would also be desirable for the zone to consult other zones regarding assessment practice. If the zone after due consultation is of the view that the long standing assessment practice across the country is erroneous, due information on assessment practice and justification should be collected from various zones and a detailed reference made to the Board in this regard. Conference also suggested that Board should dispose off such references expeditiously and where needed issue a circular.
B.52 – Implementation & Other Related Issues-Ex-parte Adjudication of Show Cause Notices under Specified Circumstances.
The issue of procedure for adjudication where a CERA objection is closed was discussed.
Discussion & Decision –
The conference discussed that audit of a Central Excise or Service tax assessee by CERA results in Local Audit Paragraphs (LAR). Many of these LARs are closed and not converted to Statement of Facts (SOF) as the reply given by the department is accepted by the AG’s office. This process may take time and during this process protective in many cases show cause notices are issued to protect the interest of revenue. The issue is whether the adjudication of such show cause notices after the closure of audit paragraphs in consultation with CERA, should follow the procedure of examining the reply of the assessee to the notice, grant of personal hearing etc. The conference was of the view that where an audit objection by CERA is dropped and the audit paragraph closed on the basis of the reply of the department and the view of the department continues to be so, elaborate adjudication proceedings are not required as the department itself has not agreed with the audit paragraph and the consequential show cause notice. Such show cause notices may be dropped by the adjudicating authority without waiting for reply from the assessee or grant of personal hearing as insistence on these steps imposes unwarranted litigation cost on the assessee. This procedure would also apply regarding adjudication of cases where the issue has been clarified by the Board in favour of the trade or where the issue has been decided in favour of the assessee by the Hon’ble Supreme Court.
B.53 -Audit manual – Release of Central Excise and Service Tax Audit Manual (CESTAM)
A new Central Excise and Service Tax Audit Manual was released during the Central Excise Tariff Conference held on 28th Oct-29th Oct., 2015 at Chandigarh. The manual consists of 9 chapters and 11 annexures (on the Central Excise side). The manual provides an exhaustive coverage of various aspects relating to Central Excise audit such as management of audit functions in light of new Audit Commissionerates, principles of audit, responsibility and authority of auditors, audit preparation and verification, audit report etc. A key feature of the audit manual is risk based selection of assessees for audit, based on certain pre-defined risk parameters. Besides, the audit manual also lays down guidelines for audit of multi-locational units (integrated audit) i.e. a manufacturer having more than one unit on the same PAN.