Apr 19, 2013
Transcription
Apr 19, 2013
Tax Update Vol.3, Issue 7, April 2013 HSA(IDT)3(2013)7 CONTENTS CASES Excise Procedural lapses not sufficient ground for denying cenvat credit CBEC Circular on recovery applicable-only in situations as provided in the CESTAT order CONTRIBUTORS Akkriti Bhatt Ankita Bhasin Chinmay Agarwal Mannat Waraich Suresh Uniyal FOR ANY QUERIES CLICK TO REACH: Abhishek Dutta abhishek.dutta@hsalegal.com Nand Kishore nand.kishore@hsalegal.com Rashmi Chaudhury rashmi.chaudhury@hsalegal.co m MODE OF CITATION: HSA(IDT)3(20 13)7 HSA Advocates, a law firm based out of India, has a significant team of lawyers headed by 10 Partners. Our principal offices are in New Delhi, Mumbai and Kolkata with a presence in Bangalore. HSA Advocates is a culmination of the shared visions of its Partners and brings together the demonstrated strengths and leadership positions in diverse practice areas. HSA Advocates is a fullservice law firm engaged in providing legal services in its chosen areas of practice. One amongst these areas is Indirect taxes. Our team of niche experts in Indirect taxes brings to bear their significant experience in Service Tax Input services used in relation to inputs-cenvat credit allowed NOTIFICATIONS & CIRCULARS Excise Clarification on the scope of exemption under a notification Amendment in the CESTAT Appeal forms Service Tax Last date for filing ST-3 extended VAT/Sales Tax Exemption withdrawn under AP VAT Act Tax paid on MRP -Goods notified under WB VAT Act Incidental goods- eligible to claim concessional rate and set off under MP Entry Tax Rules Amendments in Chhattisgarh VAT Act Exemption to certain goods from entry tax in Chhattisgarh Rate of VAT increased under Kerala VAT Act Exemption to certain goods under Delhi VAT Act advising various large clients on implications, optimization, planning and controversy. AWARDS AND RECOGNITIONS Top CASES Excise Procedural lapses not sufficient ground for denying cenvat credit Leading law firm in Corporate / M&A Chambers Asia, 2011 & 2010 Editions Tier - 1 law firm in ‘Projects, Infrastructure & Energy : India Chambers Asia, 2011 Edition Consistently ranked as a Tier 1 law firm in ‘Projects & Energy’ and as a leading law firm in Corporate M&A, Banking and Finance, Private Equity and TMT Asia Pacific Legal 500 Winner of M&A Law Firm for the Year India Global Awards 2011; Leading Corporate & M&A Law Firm of the Year India – Law Awards 2011; Law Firm of the Year (M&A) – Asia – Continent Excellence Awards 2011 by InterContinental Finance Magazine Indian Cross-Border M&A Law Firm of the Year – Acquisition International Magazine – Legal Awards 2011 Best Banking & Finance Law Firm INDIA – InterContinental Finance Magazine End of Year Country Awards 2011 Climate Change Law Firm of the Year in India – Corporate Intl Magazine - Global Awards 2011 In the present case, the Commissioner denied cenvat credit of the service tax paid on input services to Taxpayer on the ground that there were procedural lapses and the tax invoices did not contain all the particulars. Further, the Commissioner held that the cenvat credit on which the credit was taken was in the name of their head office and their head office was not registered as ISD. Therefore, the cenvat credit should be denied to the Taxpayer. The tribunal while remanding the matter held that since all the procedural lapses were rectifiable the cenvat credit should not be denied to the Taxpayer. Further, the tribunal held that in a number of cases, cenvat credit has been allowed even if the invoices were in the name of the ISD, therefore t such ground of denying cenvat is invalid M/s Gujarat Sidhee Cement Ltd v. Commissioner of Central Excise, Bhavnagar, 2013-TIOL-CESTAT-Ahmedabad CBEC Circular on recovery applicable-only in situations as provided in the CESTAT order The CESTAT Bangalore passed an order under Rule 41 of the CESTAT Rules on the validity of the CBEC circular no 967/01/2013-CX, dated January 1, 2013 which provided for initiation of recovery proceedings within 30 days of filing the appeal if no stay was granted. The order states that coercive action would not be taken by the Department against the Assessee during the pendency of the stay application except in the following situations: Where Service Tax/Central Excise duty has been collected but not paid; Where the admitted duty/service tax liability (before adjudicating authority/Commissioner (Appeals)) is yet to be discharged with interest; Where the Commissioner (Appeals) rejected the appeal on the ground that the appeal was filed beyond the time limit Further, The Tribunal also held that coercive action should not be taken Where the Assessee had deposited the entire duty/service tax liability determined at any stage. The Tribunal directed the field formation within its jurisdiction that no action would be taken unless the Assessee’s case falls into any of the aforementioned situations. Suo Motu Miscellaneous Order No. 25453/2013 dated April 2 ,2013, 2013-TIOL-533CESTAT-Bangalore 2011 Indian - Climate Change Law Firm of the Year – Global Law Experts 2011 Indian Law Firm Awards Winner for Energy, Projects and Infrastructure - India Business Law Journal Best Energy Team, India - World Finance Legal Awards 2010 Winner of ACQ Global Awards 2011 & Law Awards 2010 (UK) in over 20 categories If you wish to stop receiving these updates at any point then you may kindly email us at Indirecttaxes@hsalegal.com or contact Abhishek Dutta / Nand Kishore/ Rashmi Chaudhury at +91 11 2651 1000. Provided on request for personal use. Not for circulation or distribution Service Tax Input services used in relation to inputs-cenvat credit allowed The Taxpayer was engaged in the manufacture of excisable goods and had installed storage tanks for storing ammonia at its premises. The Taxpayer was availing cenvat credit of the input services which were used in relation to the storage tanks. The Revenue sought to deny the cenvat credit availed on the basis that the storage tanks were located outside the factory of production. Further, the Tribunal had held that the input services provided in relation to inputs were limited to the specified categories as provided in the inclusive part of the definition of input services under Rule 2(l) of CCR. The HC held that the definition of input services as provided under Rule 2(l) of the CCR covers any service used by the manufacturer directly or indirectly, in or in relation to the manufacture of final products and includes the two specified categories of services in relation to inputs. The HC held that the input services provided in relation to inputs cannot be restricted to the two specified categories as provided under Rule 2(l) of the CCR. Further, Rule 3(1) of the CCR allows a manufacturer of final products to take credit of any input service received in the factory of manufacture of the final product. Accordingly, the HC gave a broad and comprehensive meaning to the definition of input services and held that the Taxpayer was allowed to avail cenvat credit of the input services. Deepak Fertilizers and Petrochemical Corporation Ltd. v. CCE, Belapur, 2013-TIOL212-HC-Mum-CX Top NOTIFICATIONS AND CIRCULARS Excise Clarification on the scope of availing the area based exemption on certain goods It has been clarified that the benefit of the area based exemption under Notifications No. 49/2003-CE and 50/2003-CE, dated June 10, 2003 could only be extended to units that undertake expansion by acquiring the adjoining plot with at least one common boundary with the existing plot. The said notification would not cover plots that are not immediately adjoining to the existing plot but are at some distance away from the plot. Circular No. 968/02/2013-CX, dated April 1, 2013 Amendment in the CESTAT Appeal forms Certain amendments/ revisions have been made in the CESTAT appeal forms for quick disposal of cases and better administration. Key amendments are as follows: Single forms has been prescribed for appeal against order passed by the Commissioner and Commissioner (Appeals) in central excise and customs matters Furnishing of IEC has been made mandatory in the appeal form for customs A separate field for premise code for identification of the jurisdictional Commisionerate/Division/Range has been introduced in service tax forms Furnishing of PAN or UID has been made mandatory These amendments would be effective from June 1, 2013. However, the old forms could be valid for a period of 3 months from the effective date. From September 1, 2013 all appeal would have to be filed in the new form. Circular no. 969/03/2013-CX, dated April 11, 2013 Service Tax Last date for filing ST-3 extended The last date for filling the service tax return in Form ST-3 for the period July 01, 2012 to September 30, 2012 has been further extended to April 30, 2013. Order No 02/2013- Service Tax, dated April 12, 2013 VAT/Sales Tax Exemption withdrawn under AP VAT Act Exemption from payment of VAT has been withdrawn in respect of the following goods: Sale of goods to any unit located in SEZ All goods sold to units, operator, developer, co-developer and contractors engaged by them for use in processing area of the respective SEZ except certain specified goods Circular No. 10 CCT’s Ref. No. L.III(2)/48/2013 dated April 6, 2013 Tax paid on MRP -Goods notified under WB VAT Act Certain goods such as drugs, medicines, chemical fertilizers, LPG etc., have been notified for the purposes of levying VAT on MRP. The notification provides rate of tax in the both situations where MRP is inclusive of tax and where MRP is exclusive of tax Notification No. WB (Part -I)/2013/SAR -116 dated March 28, 2013 Incidental goods- eligible to claim concessional rate and set off under MP Entry Tax Rules Under the MP Entry Tax Rules, the concessional rate of entry tax has been made applicable to incidental goods in addition to the raw materials. Further, the dealer would also be eligible to claim set off in respect of the incidental goods. Notification No. F-A 3-12-2013-1-V (26) dated April 1, 2013 Amendments in Chhattisgarh VAT Act Exemption has been granted to certain specified machinery and equipments used in the execution of civil works contract. The exemption is to the extent that the specified goods would be taxable at the rate of 5 percent Exemption to dealers undertaking works contracts involving supply of goods from applicability of section 27(2) Chhattisgarh VAT Act subject to certain conditions and restriction The above are applicable for the period from April 1, 2013 till March 31, 2014. Notification No. F-10/10/2013/CT/V (12) and Notification No. F-10/10/2013/CT/V (17) dated March 28, 2013 Exemption to certain goods from entry tax in Chhattisgarh Certain goods such as devices and equipment used in generation of solar energy, iron ore, pig iron and steel scrap etc. subject to certain restrictions have been exempt from whole or part of entry tax under the Schedule. Notification No. F-10/08/2013/CT/V (10) dated March 28, 2013 Rate of VAT increased under Kerala VAT Act The rate of tax in Kerala has been increased from 13.5 percent to 14.5 percent. Circular No. 4/2013- C1-33000/12/CT dated April 2, 2013 Exemption to certain goods under Delhi VAT Act Certain goods such as RDF and tiles made from malba and kerbstones made from malba have been exempted from payment of VAT in Delhi. Notification No. F.3(18)/Fin.(Rev.1)/2012-13/ dsvi/265 dated March 30, 2013 Top GLOSSARY OF TERMS AP VAT CESTAT CESTAT Rules CCR Delhi VAT Act FCCBs Finance Act IEC Import Rules ISD JPMS Kerala VAT MP Entry Tax Rules MRP PAN RDF UID WB VAT Andhra Pradesh Value Added Tax Act, 2005 Custom Excise Service Tax Appellate Tribunal CESTAT( Procedure Rules),1982 Cenvat Credit Rules, 2004 Delhi Value Added Tax Act, 2005 Foreign Currency Convertible Bonds Finance Act, 1994 Importer Exporter Code Taxation of Service (Provided from Outside India and Received in India) Rules, 2006 Input Service Distributor J.P. Morgan Securities Ltd. Kerala Value Added Tax Act, 2003 Madhya Pradesh Sthaniya Kshetra me Mal Ke Pravesh Par Kar Niyam, 1976 Maximum Retail Price Permanent Account Number Refuse Derived Fuel Unique Identification Number West Bengal Value Added Tax Act, 2003 Confidentiality: This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure. If the reader of this message is not the intended recipient or an employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any review, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and delete the original message. Thank you.