Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Publish Date: 14 Jul, 2014
Print   |    |  Comment

Permission to dispose of Plant and Machinery Supplied to UN Projects

Permission to dispose of Plant and Machinery Supplied to UN Projects

 

An Article by:-
CA PRADEEP JAIN &
RANU DHOOT

Burdened with extraordinary expectations after a campaign that promised "good days are coming," Prime Minister Narendra Modi's center-right government presented the most hyped budget on Thursday aimed at increasing investment, improving infrastructure and reviving manufacturing, though it fell short of the drastic overhauls necessary to rein in spending. The much anticipated Budget 2014 delivered amid an environment of price rise and huge expectations from the government brought about several changes in the gamut of indirect taxes. One of which stands the insertion of a proviso in Notification 108/95 CE dated 28.08.1995.
 
BACKGROUND
NOTIFICATION 108/95 CE Dated 28.08.1995, provides for exemption from payment of duty of excise, for all goods when supplied to United Nations or an International organization for their official use or supplied to the projects financed by the said United Nations or an International organization and approved by the Government of India. Due to the boom in infrastructural sector, several infrastructural development works, such as road projects, etc. are being carried out by the Central Government / various State Governments, with financial assistance from various International organizations.  The exemption is subject to a condition that if the goods are thus supplied to a project, a Certificate from an officer not below the rank of Deputy Secretary to the Government of India, in the Ministry of Finance should be furnished certifying that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India. 
Claiming the said exemption for consumable goods such as cement, steel, etc., which would be used in the project does not have any problem.  But, when some capital items, such as cranes, crushers, machineries, etc. are required for execution of the said project, there is a possibility that the contractor may claim exemption for such goods and after using it in the said project for namesake, divert the same to his any other contracts, which are not entitled for the benefit of exemption.  By this ingenious method, a contractor may procure all his capital equipments required for all his contracts, claming exemption under this notification on the basis of the Certificate as envisaged and immediately withdraw the capital equipments from the said project and divert the same to his other projects.
In order to avoid such dubious practices, an Explanation had been inserted in Notification 108/95, vide Notification 1/2008 CE Dated 01.03.2008, which disentitled the exemption in respect of the items which are temporarily used in the said projects.  In case of items of capital nature, like cranes, crushers, machines, etc. the exemption could not be denied, if these items were used in the project, till the completion of the project and not withdrawn in between and the exemption cannot be denied, if such capital items were transferred to any other projects, after completion of the specified projects.  In other words, the vice of this explanation would get attracted only in case of premature withdrawals.
However this notification could not provide benefit of exemption on plant & machine supplied prior to 2008.  Such plant & machine (obtained prior to 2008) could not be transferred or sold out from the project site. The contractors, in such case were left with no other option but to build a museum in the respective sites, after completing the project and keep all items procured without payment of duty of excise, for execution of the project!
 
GOOD NEWS: BUDGET 2014’s IN
With the budget hailed a good news for the contractors. Vide Notification No. 11/2014-Central Excise dated 11.07.2014 the Central Government seeks to amend Notification No. 108/95-Central Excise dated 28.08.1995. In the said notification, after the proviso, the following shall be inserted, namely:-
 
“2. Where the said goods are cleared prior to the 1st March, 2008, the manufacturer may -
 

  1. transfer the said goods to a new project subject to the condition that the manufacturer produces before the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture, a certificate from the officer concerned of the Central Government, State Government or Union territory Administration, as the case may be, that the said goods are no longer required for the said project and a declaration from the United Nations, the World Bank, the Asian Development Bank or any other international organization listed in the Annexure to the said notification that the said goods are required for the new project and the said project has duly been approved by the Government of India; or

 

  1. pay duty of excise which would have been payable but for the exemption contained herein on the depreciated value of the said goods subject to the condition that the importer produces before the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture, a certificate from the officer concerned of the Central Government, State Government or Union territory Administration, as the case may be, that the said goods are no longer required for the existing project. The depreciated value of the said goods shall be equal to the original value of the goods at the time of clearance reduced by the percentage points calculated by straight line method as specified below for each quarter of a year or part thereof from the date of clearance of the said goods, namely:-

 

  1. for each quarter in the first year at the rate of 4 per cent;

 

  1. for each quarter in the second year at the rate of 3 per cent;

 

  1. for each quarter in the third year at the rate of 2.5 per cent; and

 

  1. for each quarter in the fourth year and subsequent years at the rate of 2%,

 
subject to the maximum of 70%.”.
With the upcoming of such proviso the supplier of Plant & machinery can now transfer the said goods to a new project subject to the following conditions:

  1. the manufacturer needs to produce before the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, a certificate from the officer concerned of the Central Government, State Government or Union territory Administration, that the Plant & Machinery are no longer required for the said project, and;
  2.  a declaration from the United Nations, the World Bank, the Asian Development Bank or any other international organization listed in the Annexure to the said notification that the said goods are required for the new project and the said project has duly been approved by the Government of India.
  3. For clearance of the such Plant & machinery the importer shall have to pay excise duty on the depreciated value of the same after charging depreciation on the original value of it as calculated in the manner and at the rates as prescribed in the amendment notification for transfer of the said goods to a new project subject to the condition that the manufacturer produces before the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture, a certificate from the officer concerned of the Central Government, State Government or Union territory Administration, as the case may be, that the said goods are no longer required for the said project and a declaration from the United Nations, the World Bank, the Asian Development Bank or any other international organization listed in the Annexure to the said notification that the said goods are required for the new project and the said project has duly been approved by the Government of India.

 
 
TO SUM UP…
For the machine supplied by the supplier before 2008, if the exemption of duty had to be availed the supplier could not transfer or sell out such machines in any circumstance. However, with the introduction of amendment through the budget of 2014, liberty has been provided to transfer or sell the said plant and machinery from the project site subject to the conditions discussed above.


 

 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com