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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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Publish Date: 02 Mar, 2016
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Import of goods by vessel – Budget, 2016 made it expensive!!!

Import of goods by vessel – Budget, 2016 made it expensive!!!

An article by:-
CA. Pradeep Jain
CA. Preeti Parihar
CA. Vaibhav Bothra

Introduction:-
Budget 2016 has been introduced and with it has come many amendments and changes in the law. One such change is with respect to the services by way of transportation of goods by an aircraft or a vessel. The amendments made in it are effective from 1.6.2016 andwill impose additional fiscal burden on the importers importing goods via sea. This article demonstrates the existing scenario, amendments made and the implications thereof.
 
Existing Situation:-
The services of transportation of goods by an aircraft or a vessel are exempted in negative list in section 66D as follows:-
(p) services by way of transportation of goods—
(i) by road except the services of—
(A) a goods transportation agency; or
(B) a courier agency;
(ii) by an aircraft or a vessel from a place outside India up to the customs station of clearance in India; or
(iii) by inland waterways;
Thus, there is exemption to the services of transportation of goods when carried by an aircraft or vessel from a place outside India up to the customs station of clearance in India. As a result the shipping lines particularly are exempt from service tax while importing goods on behalf of the importers.
 
Amendment effective from 1.6.2016:-
In the latest budget, it has been declared that this entry [sec. 66D (p)(ii)] shall be omitted w.e.f. 01/06/2016.The effect being that the above stated exemption to vessels and aircrafts under the above entry shall not be available. Amendment has also been made in notification no. 25/2012 dated 20/06/2012 vide notification no. 09/2016 dated 01/03/2016 by inserting a new entry no. 53 which states as follows:
“53. Services by way of transportation of goods by an aircraft from a place outside India upto the customs station of clearance in India.”
Thus, the new entry grants exemption only to the goods transported by an aircraft and not to vessels carrying goods. It is to be noted that this entry shall also be effective from 01/06/2016.
 
Effect of amendment:-
The new entry will exempt only the inward transportation of goods by an aircraft. The existing exemption to vessels is going to be withdrawn w.e.f. 1.6.2016. This directly impacts the shipping lines registered in India. The shipping lines are engaged in the transportation of goods from and to India. Now when the exemption from the shipping lines importing the goods from abroad to India is lifted, the Place of Provision of service rules, 2012 comes into direct play. Rule 10 of POPS states as follows:
“ The place of provision of services of transportation of goods, other than by way of mail or courier, shall be the place of destination of the goods:
 
 Provided that the place of provision of services of goods transportation agency shall be the location of the person liable to pay tax.”
 
In case of imports, the destination of goods is India which is a taxable territory. Thus, two situations will arise:-
1.     Where the shipping line is registered in India
2.     Where the shipping line is registered outside India
In the first case, as the shipping line is registered in India, and the service is taking place in a taxable territory, it will have to pay service tax as a service provider. On the other hand, in the second case, as the service provider is located outside India, and the service has taken place in India, rule 10 effects the place of provision in India and thus the service receiver becomes liable to pay service tax under reverse charge. The service tax so paid will be available as credit with the Indian manufacturer or service provider availing such services. The new notification also clarifies that service tax levied on such services shall not be part of value for custom duty purposes.
It is to be noted that this very entry only hits the imports and not the exports because as per the rule 10 of the POPS discussed above, the destination of goods will be outside taxable territory and thus no service tax shall be applicable.
 
While parting:-
Import of goods by vessels is now liable to service tax. Thus, the cost of imports will go high. The domestic shipping lines will be enjoying the threshold while the reverse charge cases will be taxable right from the beginning. In any case, the importers will have to suffer and the cost of imports will increase ultimately raising the cost of imported goods. Denial of this exemption further indicates the clear vision of government “Make in India”, do not import it dear!!
 

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PRADEEP JAIN, F.C.A.

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