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A BIRDS EYE-VIEW
------- By R.K.DEODHAR
INTRODUCTION
What is tax
Lord Justice Holmes of U.S. Supreme Court has defined tax
as under
Tax is the price which we pay for the civilized society.
Types of taxes
Taxes are broadly classified into two categories as
Direct Taxes.
Indirect Taxes.
Direct taxes are paid and borne by the same person
whereas
Indirect taxes are paid by one person and borne by another
person.
Examples of Direct Tax: are Income Tax, Wealth Tax, Gift
Tax.
Examples of Indirect Tax: are Excise, Customs, Sales Tax,
Service Tax.
Constitutional Background
Constitution of India came into existence on 26th
January, 1950 and it is the Supreme Law in the country.
All the laws and rules are subordinate to the
Constitution. India is a union of states. Central
Governments has certain powers and State Governments/
Union Territories have certain powers.
Article 246 of the Constitution indicates the bifurcation of
these powers and the details are listed in three lists of the
Seventh Schedule of the Constitution.
List I.( Union List.) contains the matters which can be
dealt with by Central Government. e.g. Defence. Foreign
Affairs, Banking etc.
List II (State List) Contains the matters which can be
dealt with by State Government. e.g Public Health, Police,
Agriculture etc.
List III ( Concurrent list ) contains the matters which can
be dealt by both Central Government as well as State
Government. e.g Criminal Law, Trust, Trade Unions etc.
f) Central Excise (Settlement of Cases) Rules, 2001 :These contain the provisions where assessee wants to
settle the dispute with the Government.
g) Central Excise (Removal of goods at concessional rate
of duty for manufacture of Excisable Goods) Rules 2001:These relate to the procedure for removing the goods
under special circumstances.
h) Central Excise Tariff Act,1985:-This Act classifies all the
goods into various Sections,Chapters & Chapter-Headings
& rates of duties.
i) CEGAT(Procedures) Rules,1982:- These provide for the
procedures to be followed in CEGAT(now called CESTAT i.
e. Central Excise & Service Tax Appellate Tribunal.)
j) Notifications:- These are issued by Ministry of Finance &
are of two types viz. C.E. Notifications & N. T.(Non-Tariff)
Notifications- C.E. Notifications are issued when there are
any changes in the rates of duty whereas N.T.
Constitution Of India
Entry number 84 of List I (Union list) of Seventh
Schedule to the Constitution of India reads as follows:
Duties of Excise on tobacco and other goods manufactured
or produced in India, except alcoholic liquors for human
consumption, opium, narcotics, but including medical and
toilet preparations containing alcohol, opium and narcotics.
Central Excise Act, 1944
Section 3(a) of the Central Excise Act, 1944 states that
there shall be levied and collected in such manner as may
be prescribed duties on all Excisable goods (excluding
goods produced or manufactured in Special Economic Zone
which are produced or manufactured in India and at the
rates, set forth in the First Schedule to the Central Excise
Tariff Act, 1985).
Basic Conditions
1] The duty is on goods.
2] The goods must be excisable.
3] The goods must be manufactured or produced in
India.
Goods Manufactured In S.E.Z are not
Exempted
Goods but excluded goods.
Taxable Event
Rate Of Duty
Though the taxable event is manufacture, duty becomes
payable on the removal of goods from the factory and the rate
of duty will be the rate which is applicable on the date of
removal of goods Rule 5.
In case of molasses, the rate will be the rate applicable on
the date of receipt of molasses in the factory of the procurer.
Types of Excise Duty
Basic Excise Duty (also known as Cenvat) is levied on all
manufactured goods mentioned in First Schedule to Central
Excise Tariff Act, 1985.
Ad Valorem Rate of duty is the duty which is based on the
value of goods.
Specific rates of duty is the duty which is fixed per unit of
measurement of the goods e.g, per number, per M.Ton etc.
Other Duties
In addition to Central Excise duty, following duties are
also levied on certain goods
a) Excise duty in case of clearances by EOU/FTZ/SEZ:
(Equal to Customs Duty)
b) National Calamity Contingent Duty.
c) Additional duty on goods of special importance.
d) Additional duty on textile articles.
e) Duty on medical and toilet preparation.
f) Cess:- Cesses are of various types but following
two types are very commoni) Education Cess 2% on Central Excise Duty.
ii) Secondary & Higher Education Cess 1% on
Central Excise Duty.
Definition Of Manufacture:
There is no definition of manufacture under Central Excise
Law.
Section 2(f) of the Central Excise Act, 1944 states as under
Manufacture includes any process
a) incidental or ancillary to the completion of manufactured
product and
b) which is specified in relation to any goods in Section or
Chapter Notes of the First Schedule to the Central Excise Tariff
Act, 1985 as amounting to manufacture, or
c) which in relation to the goods specified in the Third
Schedule, involves packing or repacking of such goods in a
unit container, or labeling or relabelling of containers including
the declaration or alteration of retail sale price on it or adoption
of any other treatment on the goods to render the product
marketable to the consumer.
Deemed Manufacture
The processes explained in ii) and iii) in Section 2 (f) are
considered as processes resulting into Deemed Manufacture.
It means that applying the principles of court cases, the
processes are not actually manufacturing processes but
those are considered as manufacturing processes because
law says so.
Examples of Deemed Manufacture:
Labelling, Relabelling, Packing, Repacking.
Building a body on a duty paid chasis.
Printing, decorating or ornamenting on glazed ceramic
tiles, glass mirrors.
Galvanizing of Articles of Iron and Steel.
Recording of sound or other phenomena on audio or video
tapes.
Manufacturer:
- Sec 2 (f) states that the word manufacturer shall be understood accordingly
and shall include not only a person who employs hired
labour in the production or manufacture of excisable
goods but also any person who engages in their
production or manufacture on his own account.
The above definition covers two categories:
a)Persons who manufacture goods themselves on their
own account &
b)Persons who get the goods manufactured through
hired labour. A hired labour is one who hires himself out to
work for and under control of another for wages (e.g jobworker).
Goods
Excisable Goods
CLASSIFICATION
Introduction:
Excise Duty is levied on all the Excisable Goods
manufactured in India and hence thousands of goods
attract the duty. For the purpose of proper identification
and differentiation of the goods, it becomes necessary to
group them in some logical method. This is called the
classification of goods.
Background of Classification:
The need for classification was felt all over the world
and hence World Customs Organisation developed a coding
structure which is known Harmonized System Of
Nomenclature (HSN). This was not followed in India till 1986.
Till that time, we were having our own classification which was
different for Central Excise and for Customs. This was
creating lot of problems in our international trade and hence in
Section No.
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
XII
XIII
XIV
XV
XVI
XVII
XIII
XIX
X
Section Heading
Chapter No.
Animal products
2 to 5
Vegetable products
7 to 14
Animal or vegetable fats
15
Prepared food stuff, beverages
16 to 24
Mineral products
25 to 27
Chemicals fertilizers soaps etc.
28 to 38
Plastics and rubber and articles
39 to 40
Leather and articles
41 to 43
Wood, cork, straw and their articles
44 to 46
Pulp, paper, paperboard and articles
47 to 49
Textile and textile products
50 to 63
Footwear, head gear, umbrellas etc.
64 to 67
Articles of stone, plaster, ceramic glass
68 to 70
Pearls and precious metals
71
Base metals and articles of base metals
72 to 83
Machinery and mechanical appliances etc. 84 & 85
Vehicles, aircraft, vessels etc.
86 to 89
Optical, photographic, medical, clocks etc. 90 to 92
Arms and ammunitions
93
Miscellaneous manufactured articles
94 to 96
[ Note : - Chapter numbers 1,6,10,12 and 77 are blank ]
CHAPTER NO.
Chapter 72
Chapter 73
Chapter 74
Chapter 75
Chapter 76
Chapter 77
Chapter 78
Chapter 79
Chapter 80
Chapter 81
Chapter 82
Chapter 83
DESCRIPTION
Iron and steel
Articles of iron and steel
Copper and articles thereof
Nickel and articles thereof
Aluminum and articles thereof
Blank
Lead and articles thereof
Zinc and articles thereof
Tin and articles thereof
Other base metals
Tools, implements, cutlery, spoons and
forks of base metals, parts thereof of base
metals
Miscellaneous articles of base metals
-Other
-- Containing by weight
antimony as the principle
other element
Kg.
8%
4.10 Principles of Classification :1] Trade Paralance :While classifying the goods, most important test of trade
paralance must be applied i.e. how the goods are
understood by the people who deal in them e.g.
a) Glass Mirror should not be classified as articles of
glass but it should be considered as Mirror.
b) Plastic torch is not an article of plastic but it is different
commodity.
2] Statutory definitions overrides Trade Paralance.
3] H.S.N & Classification: C.E.T.A.,1985 nowhere states that notes in HSN will be
applicable for interpreting the Tariff but Supreme Court and
other have consistently taken a stand that HSN can be
taken as a basis for classification unless Tariff Heading is
not aligned with HSN.
4] End Use & Classification :Generally end use is not an important criteria for
classification unless classification is related to function of
goods. e.g. Laminated Safety Glass will be classifiable as
Laminated Safety Glass only even if it is used a part of
Motor Vehicle. However Plastic Pipes and pipe fittings
manufactured with an intention of being used as a part of
irrigation system should be classified as parts of irrigation
system only and not as Plastic Pipes.
5] Dictionary meaning /Technical Literature: In absence of any statutory definition, dictionary
meanings or technical literature can be referred to for the
purpose of classification.
6] Advertisement / product literature: This cannot be considered for the classification.
VALUATION.
Place Of Removal:
It means a) a factory or any other place or premises
of production or manufacture of the excisable goods;
b) a warehouse or any other place or premises wherein
the excisable goods have been permitted to be deposited
without payment of duty from where such goods are removed .
Related person:
The person shall be deemed to be related if
a) they are interconnected undertakings;
b) they are relatives;
c) amongst them, the buyer is a relative and a
distributor of the assessee, or a sub-distributor of
such distributor, or,
d) they are so associated that they have interest,
directly or indirectly, in the business of each other.
Transactional Value:
It means the price actually paid or payable for the
goods, when sold, and includes in addition to the amount
charged as price, any amount that the buyer is liable to pay to,
or on behalf of the assessee, by reason of or in connection
with the sale, whether payable at the time of the sale or at any
other time, including, but not limited to any amount charged
for, or to make provision for, advertising and publicity,
marketing and selling organization, expenses, storage,
outward handling, servicing, warranty, commission or any
other matter; but does not include the amount of duty of
excise, Sales Tax and other taxes, if any, actually paid or
actually payable on such goods.
a) Price must be sole consideration :This means that apart from price, no other benefit
should flow from the buyer to the seller. If there is any
additional consideration other than price, then Transaction
Value will not be the basis for the valuation of Goods.
Examples of additional consideration
a) buyer supplies material.
b) buyer supplies moulds, dies, tools etc.
b) Price Actually paid or payable :Payment should be by reason of , or in connection of
the sale :As per Oxford dictionary the meaning of by reason of is
motive or cause. This indicates cause and efect
relationship. The term connected with must be considered
to imply or substantial or direct connection and not remote
and doubtful connection. In relation to is different from in
connection with Mere relation is not enough, connection is
required.
Certain clarifications issued by C.B.E. & C:1) If the provisions of Standards of Weights & Measures Act,
1976 do not apply, duty is payable on the basis of section 4.
2) If the goods are sold in wholesale, valuation should be as
per Section 4. hence, it is possible that the same commodity
would be sometimes assessed under Section 4 &
sometimes under section 4A.
SPECIFIC DUTY
If the duty is payable on the basis of certain
measurement unit like weight, length, nos. etc., it is called
as specific duty. In such case value of goods has no
relevance. Examples:
1) Cigarettes other than filtered cigarettes of length Rs.
78 per Thousand not exceeding 60 mm.
2) Sugar, other than khandsari sugar-Rs. 34 per quintal
.TARIFF VALUE
In some cases, tariff values are fixed by Central
Government. This is Notional Value for the calculation of
the duty payable. This is fixed under section 3(2) of the
Central excise Act, 1944.
Presently, tariff Values are fixed only for two commodities
viz.1] Pan Masala packed in retail packs of less than 10
grams per pack.
2] Readymade garments falling under C.H. No. 6101.00 &
6201.00.
PRACTICAL EXAMPLES ON VALUATION :1] B. Ltd. manufactures two products viz. Eye Oinment & Skin
Oinment. Skin Oinment is a specified product under Section
4A of The Central Excise Act, 1944. The sales prices are Rs.
43/- & Rs.33/- respectively. Sales Price included 8% Basic
Excise Duty, 2% Education Cess & 1% Secondary & Higher
Education Cess. It also included CST of 2%.
Additional information :Units cleared :- Eye Oinment 1,00,000 units.
Skin Oinment 1,50,000 units.
Deduction under Section 4A is 30%.
Calculate the total excise duty on both products.
2] An assessee sells the goods to ABC Co. Ltd for Rs. 10,000/on 15th Dec. 2004.The buyer is a related person as
defined under Section 4(3) ( b) of The Central Excise
Act,1944. On that date, the net price ( excluding excise
duty) of related person to an unrelated buyer was
Rs.12,000/-. What will be the assessable value in each of
the following cases ?
a) The related person sells the goods to an unrelated
buyer on 5th Feb. 2004 at Rs. 12,500 exclusive of excise
duty.
b) The related person sells the goods to unrelated buyer
on 10th Feb.2004 at Rs. 11,000, exclusive of excise duty.
c) The buyer is treated as related person as it is an
interconnected undertaking in relation to manufacturer.
However the buyer is not a holding company or subsidiary
company of the assessee. Buyer & seller do not have
interest in each other.
REGISTRATION
SECTION 6 / RULE 9:Every person who produces, manufactures, carries on trade,
holds private store - room or warehouse or otherwise uses
excisable goods, shall get registered.
NOT. NO 35/2001 (N.T.) DT. 26.06.2001:
A] Application for Registration:
Every person who wants to get registered shall apply in the
prescribed Form A-1. Broad Contents of the form are as under:
1] Name and address of the applicant.
2] PAN of the Applicant.
3] Constitution: Proprietorship, Partnership, Company
4] Boundaries of the premises.
5] Name, designation and address of the person signing
the application.
6] Name, address and PAN of the Proprietor/Partner/
Director. 7] Details of the Bank Account.
MEANING OF FACTORY
Section 2 (e):
Factory means any premises, including the precincts
thereof, wherein or in any part of which excisable goods other
than salt are manufactured, or wherein or in any part of which
any manufacturing process connected with the production of
these goods is being carried on or is ordinarily carried on.
STORAGE OF GOODS:
1] Manufactured goods can be stored in a factory without
payment of duty.
2] The duty is payable only when the goods are removed
from the factory.
3] There is no separate place required to be earmarked
(earlier called as BSR) where the goods can be stored.
4] There is no time limit within which the goods should be
removed from the factory.
REMISSION OF DUTY
CLEARANCE OF GOODS
INVOICE:
Clearance means removal of goods from the
factory. Rule 11 of the Central Excise Rules, 2002 makes it
compulsory to prepare an Invoice when the goods are to be
removed from the factory. It reads as under:
No excisable goods shall be removed from a
factory or a warehouse except under an invoice signed by
the owner of the factory or his authorized agent.
CONTENTS OF THE INVOICE:
1] Serial Number
2] Registration Number
3] Description and Classification of goods.
4] Time and Date of Removal.
5] Quantity and Value of the goods.
6] Rate of Duty.
7] Duty payable on the goods.
SUPPLEMENTARY INVOICE:
According to Rule 7 (1) (b) of Cenvat Credit Rules,
2004, a supplementary invoice should be prepared for the
differential duty to be paid in addition to the original duty
amount. On the basis of such supplementary invoice, the
consignee can avail the Cenvat credit.
It is also provided that in case of fraud, suppression of
facts or willful misstatement, supplementary invoice cannot
be prepared.
9.3 PAYMENT OF DUTY THROUGH P. L.A. :1] Personal Ledger Account is an account current in which
the assessee deposits an amount for payment of duty.
2] The money has to be deposited in any branch of State
Bank of India or any other nominated bank.
3] This account does not carry any interest & can be used
only for paying the Excise duty.
4] The amount is to be deposited through GAR-7 Challan &
the assessee gets credit for the same.When the duty has
to be paid,the amount of duty should be debited.The
balance does not get lapsed & the refund of the balance
is possible only at the time of surrendering the
Registration.P.L.A.has to be maintained in triplicate.There
is no requirement of maintaining minimum balance.
9.4 GAR-7 CHALLAN :1] This is a challan through which the amount has to be
deposited into the bank in order to take credit in P.L.A.
2] There is a prescribed form of GAR-7 Challan.
3] It is a single page challan having a provision for the
counterfoil to be retained by the assessee.
10.1 :- PERIODIC RETURNS:Rule 12 of The Central Excise Rules, 2002 provides that
every assessee has to submit a monthly return called ER-1 by
10th of the next month.
S.S.I units have to file a quarterly return called ER-3 by
20th of the month succeeding the quarter.
Returns should be submitted to The Range Superintendent
Returns should be submitted in quintuplicate (5 copies).
There is a prescribed form of ER-1. The contents are
follows:A] Details of the manufacture, clearance & duty payable
1) Chapter Heading No.
2) Unit of Quantity
3) Quantity Manufactured
4) Quantity cleared
5) Assessable Value
6) Duty
7) Notification availed
8) Rate of duty
9) Duty Payable
10) Provisional Assessment No. (If any)
B] Details of duty paid:1) Duty Code
2) Cenvat
3) Account Current
4) Total duty Paid
C] Details of Cenvat credit availed & utilized:1) Opening Balance
2) Credit availed on Inputs
3) Credit Availed on Capital Goods
4) Total Credit availed
5) Credit utilized 6) Closing Balance
10.3:- EXPORT PROCEDURE:A] There are two procedures of Export:1) Export without payment of duty.
2) Export under Rebate (refund).
B] The goods have to be cleared under an Invoice. In addition
to Invoice, a prescribed form A.R.E-1 has to be prepared by
the Exporter.
C] Copies of A.R.E-1 are as follows:1) Original White
2) Duplicate Buff
3) Triplicate Pink
4) Quadruplicate Green
5) Quintuplicate (Optional)
the goods are not returned, then he has to reverse the credit.
He is entitled to take credit again when the goods are
received in the factory.
6] If the procedure under Not.No.214/86 is not followed,
then the job worker is considered as a manufacturer & he
will have to pay the duty on the assessable value which will
be calculated on the basis of Transaction Value i.e.the price
at which the goods are sold by the principal manufacturer to
his customer.
7] Only by supplying the material, the supplier does not
become a manufacturer. His liability arises only when the
undertaking is given by him under Not.No.214/86.
8] Use of own material by the job-worker is no bar under
Central Excise Law.
9] Material can be directly sent to job-worker from the
supplier of the manufacturer & the goods after job-work also
can be directly sent to the customer from the job-workers
premises.
CHAPTER 11 : CENVAT
11.1 : Background of CENVAT
CENVAT (Central Value Added Tax) has its
origin in VAT (Value Added Tax) which is common in other
parts of the world for a long time. In India, it was first
introduced with the name of MODVAT (Modified Value Added
Tax) in 1986. In the modern production methodology, raw
material passes through various processes till it reaches
finally to the ultimate user. At every stage, a new commodity
emerges which attracts various taxes like Central Excise
Duty, Sales Tax etc. This results in tax on tax which is called
cascading effect.
11.3: Rule No. 2: Definitions:a) Capital Goods means A] The following goods namely 1] All goods falling under Chapter 82, 84,
85, 90, Heading No. 6805,grinding wheels &
the like & parts thereof falling under
C.H.No.6804.
2] Pollution Control Equipments.
3] Components, spares and accessories of
the goods specified at (i) & (ii) above.
4] Moulds and Dies, jigs & fixtures.
5] Refractories and refractory material.
6] Tubes and pipes and fittings thereof &
7] Storage tank.
used
i) in the factory of the manufacturer of the final
products, but does not include any equipment or appliance
used in an office or
ii) for providing output service.
B] Motor vehicles registered in the name of the provider of
output service for providing specified taxable services.
c) First Stage Dealer First Stage Dealer means a dealer who purchases the
goods directly from the manufacturer or from the depot of
the manufacturer or from the consignment agent of the
manufacturer under cover of an Invoice or from an importer
or from the consignment agent of the importer under cover
of an Invoice.
d) Second Stage Dealer Second Storage Dealer means a dealer who purchases
the goods from the First Storage Dealer.
e) Inputs i) Inputs means all goods, except light diesel oil, High
Speed Diesel Oil & motor spirit (petrol), used in or in relation
to the manufacture of the final products whether directly or
indirectly & whether contained in the final product or not and
includes lubricating oils, greases, cutting oils, coolants,
accessories of the final product cleared along with the final
product, goods used as paints, packing material or as fuels
or for generation of electricity or steam used for
manufacture of final products or for any other purpose,
within the factory of production.
Ii) All goods except LDO, HSD, Motor spirit & motor
vehicles used for providing any output service.
Explanation:
Inputs include goods used in the manufacture of capital
goods which are further used in the factory of production.
f) Input Service :It means any servicea) used by a provider of taxable service
for providing an output service.
b) used by the manufacturer, whether
directly or indirectly, in or in relation to
the manufacture of final products &
clearance of final products upto the place
of removal,
and includes services used in relation to
setting up, modernization, renovation or
repairs of a factory, premises of the
provider of the output services or an
office relating to such factory or premises,
g) Input Service Distributor :It means an office of the manufacturer or producer of the
final products or provider of output service, which receives
invoices issued under Rule 4 A of Service Tax Rules, 1994
towards purchases of input services & issues invoice
11.4: Rule No. 3: CENVAT CREDIT:A manufacturer of the final products or service provider shall
be allowed to take credit of a) Basic Excise Duty as specified in First Schedule.
b) Additional Duty of Customs (C.V.D.)
c) Additional Duty of Excise leviable under Additional
Duties of Excise (Goods Of Special Importance )Act,
1957 & Additional Duties of Excise( Textile & Textile
Articles) Act,1978.
d)Additional duty of Customs leviable under sub-section
(5) of Section 3 of Customs Tariff Act
e) National Calamity Contingent Duty.
f) Service Tax.
g) Education Cess on Excisable Goods & Taxable
Services
h) Secondary & Higher Education Cess on Excise Duty
& Service Tax
paid on- i) any input or capital goods received in the
factory of the manufacturer of the final products or
premises of the provider of output Services,
ii) any input service received by the
manufacturer of final products or by the provider of
output services
2) Cenvat credit shall be available to the manufacturer
of the final products or to the service provider, on the
inputs lying in stock or in process or contained in the
finished goods stock on the date on which the final
products become excisable or output services
become taxable.
7] Inputs or Capital Goods can be sent outside to a jobworker for processing, testing, repairing, re-conditioning or
for any other purpose. Such inputs or Capital Goods must
be returned within 180 days from the date of removal from
the factory. If they are not received back within 180 days,
manufacturer has to debit the amount equivalent to the
Cenvat Credit on such inputs or Capital Goods. He can
avail the credit when the inputs or the capital goods are
received in the factory.
8] Jigs, Fixtures, Moulds and Dies can be sent out for taking
out production of goods from a job-worker.
9] Final products can be cleared directly from the premises
of the job-worker provided a prior permission is taken from
The Commissioner of Central Excise & Customs.Such
permission shall be valid for a period of one year.
10] Cenvat credit in respect of input service shall be allowed
on after the day on which payment is made of the value of
the input service & he service tax as indicated in Invoice,
bill or challan.
11.11:-Rule 9: DOCUMENTS AND ACCOUNTS:1] Cenvat Credit can be taken on the basis of any of the
following documents
a) An Invoice issued by
i) A manufacturer from his factory or from his depot
or from the place of his consignment agent.
ii) An importer from his depot or his consignment
agent.
iii) A first stage dealer or a second stage dealer.
b) A supplementary invoice issued by a manufacturer
or importer, in case additional duty has to be paid
except in cases where the duty is payable on
account of fraud, collusion or misstatement or
suppression of facts or contraventions of any
provisions of Acts or Rules.
c) A bill of entry.
d) A certificate issued by an appraiser of customs in
respect of goods imported through a Foreign Post
Office.
e) A challan evidencing payment of Service Tax by the
person liable to pay Service Tax ,
f) An invoice , bill or a challan issued by Service
provider,
g) An invoice, bill or challan issued by an Input Service
Distributor.
11.14 :-RULE 11: TRANSITIONAL PROVISION:A manufacturer who opts for SSI exemption and who has
been taking Cenvat Credit on inputs before such option is
exercised, shall pay an amount equivalent to the Cenvat
Credit allowed to him in respect of inputs lying in stock or
in process or contained in final products lying in stock on
the date when such option is exercised and if any balance
is left shall lapse.
Similar provisions apply to the service provider.
11.16 :- Rule 15 A :- GENERAL PENALTY :Whoever contravenes any provision for which no penalty
has been provided in the rules, ha shall be liable to a
penalty which may extend to Rs.5,000/-.
12.1 CHECKS BY DEPARTMENTAL OFFICERS :Various checks have been devised by Excise Department to
reduce revenue loss. These are as undera) Visits by officers.
b) Stock Taking.
c) Road checks.
d) Preventive checks.
e) Central Excise Intelligence.
f) Excise Audits i) Departmental Audit , ii) EA-2000,
iii) CERA Audit. iv) Valuation Audit v) Cenvat Credit
Audit.
12.2 DEPARTMENTAL AUDIT :a) Audit means verification & scrutiny of records &
documents in order to establish that the assessee is following
all the rules & regulations & maintaining records properly.
d) Units paying duty less that Rs. 10 Lakhs p.a. through P.L.A
Audit of 5 days at least once in five years.
12.4 :- EXCISE AUDIT -2000 :Since most of the statutory records were abolished in the
year 2000, routine Departmental Audit became redundant.
Hence Govt. introduced E.A.2000 in December 1999 which is
based on audit system followed by Govt. of Canada. This is a
very exhaustive audit covering all the aspects of the business.
12.5 :- DEPARTMENTAL INSTRUCTIONS FOR E.A.2000 :[ C.B.E.& C.Circular No.491/57/99 dt.28-10-1999,
514/10/2000 dt.16-2-2000 & 551/47/2000 dt.27-9-2000 ]
a) 15 days prior notice should be given to the assessee.
b) Audit should normally completed within 5 to 7 days.
c) Assistant Commissioner/Jt. Commissioner should join
the audit team for few days.
d ) Audit party will not issue any summons. It will not carry
out searchor seizure.
e) Audit party will not issue show cause notice.
f) Proper data base will be created.
g) It will be carried out by trained staff.
h) Asst.Director ( Cost) must accompany the audit team if
required.
i) Audit party must check source documents/records relating
to production, storage, clearances etc.
k) Audit work shall be properly documented in working
papers.
l) Assessee profile shall be created.
m) Director General ( Audit) will monitor the work of E.A.
-2000.
12.6 :-PROCEDURE FOR E.A.2000 :C.B.E.& C. has explained the following procedure
a) Selection of assesee Selection of assessee is based on
risk factors i.e.assessees who have bad track record like
evasion cases, major audit objections etc.
b) Desk Review :- Advance information is to be gathered
about the assessee like published Balance Sheet, annual
statements etc.
c) Gathering & documenting assessee information :- This is
normally done by sending a questionnaire to the assessee.
d) Touring of premises :- Auditors actually visit the factory
premises to see the running of the operations, procedures,
records etc.
e) Audit Plan :- Based on the information & experience, an
Audit Plan is prepared to list areas which appear to be
vulnerable from revenue point of view.
12.8 :- CERA AUDIT :Comptroller & Auditor General of India also carries out
audit. This is called Central Revenue Audit or CERA. This
Audit Report is submitted to the President of India & laid
before each house of the Parliament. Frequency
of CERA is dependent upon the revenue figures i.e. CERA is
conducted of large units.
12.9 ;-VALUATION AUDIT :Section 14 A of The Central Excise Act, 1944 provides for
Valuation Audit if the Commissioner is of the opinion that the
value has not been correctly declared by the assessee. This
has to be carried out by a practicing Cost Accountant after an
order has been issued by The Assistant Commissioner/
Deputy Commissioner with the prior approval of The
Commissioner. Cost Accountant will be appointed by The
Chief Commissioner. The Audit fees & expenses will have to
be paid by the Excise Department.
12.10 ;- CENVAT CREDIT AUDIT :Section 14 AA of The Central Excise Act, 1944 provides
for Cenvat Credit Audit when The Commissioner has reason
to believe that Cenvat credit availed is not normal or the
credit has been availed on account of fraud, suppression of
facts etc. This has to be ordered by the Commissioner. This
also has to be carried out by a practicing Cost Accountant
appointed by TheCommissioner.
13.3 :- CONDITIONS FOR CLAIMING THE EXEMPTION :1] Manufacturer has to opt for the exemption at the
beginning of the year i.e. before the first clearance made in
the financial year. He has to file a declaration to that effect
with the Assistant Commissioner.
2] Once such option is exercised, it cannot be changed in
that financial year.
3] The exemption is available for Basic Excise duty only.
4] The exemption is available for every financial year.
5] The Notification also exempts the goods manufactured
& captively consumed.
6] The exemption is available only to the specified goods.
7] For calculating the turnover, the value of clearances
from all the factories of a manufacturer is to be considered.
8] The aggregate value of the clearances of all excisable
goods by a manufacturer from one or more factories or from
a factory by one or more manufacturers should not exceed
Rs.400 Lakhs in the preceding financial year.
13.4 :- OTHER EXEMPTIONS TO SSI UNITS ;1] Goods manufactured in rural areas by Co-operative
societies.
2] Specified goods of Village & Cottage industries.
13.5 :- OTHER PREVILEGES OF SSI UNIT :1] Quarterly Return.
2] No declaration upto a turnover limit of Rs.90 Lakhs.
3] No visits of Excise officers without written permission
from the
Assistant Commissioner.
4] Audit once in two years.
CHAPTER 14 :ASSESSMENTS,
DEMANDS,RECOVERY & APPEALS ETC.
14.1 :- ASSESSMENT :a) Assessment means determining the tax liability.
b) Assessee :- Rule 2(e) of Central Excise Rules, 2002
states that Assessee means any person who is liable to
pay duty or a producer or a manufacturer of excisable
goods or a registered person of a private warehouse in
which excisable goods are stored & includes an authorized
agent of such person.
c) Self assessment :- Except in case of cigarettes,
assessment is self-assessment which means assessee
has to himself assess the duty payable on excisable goods.
He has to prepare the Invoice on which he has to show the
assessable value & the duty amount. He has to submit a
monthly/quarterly return, maintain all the necessary records
himself. The departmental officers will scrutinize the returns
, if required, ask certain clarifications from the assessee.
However, no assessment order is issued.
14.2 :- DEMAND OF CENTRAL EXCISE DUTY :a) Demand of duty may arise in the following casesi) Non-acceptance of assessable value by Excise
authorities.
ii) Exemptions, notifications claimed by the
assessee are not acceptable to the Department.
iii) Classification is not acceptable.
iv) Goods removed without payment of duty.
v) Erroneous refund of duty.
b) Show Cause Notice :Section 11A of Central Excise Act,1944 states that
when the duty is not paid or short paid or not paid or
short levied or not levied or any duty which has been
erroneously refunded , a short Cause Notice can be
issued within a period of one year from the relevant
date. In case of fraud, suppression of facts etc.,
Rs. 2.00 lakhs but below Rs. 20.00 lakhs, the Show Cause
Notice can be issued by The Assistant Commissioner & if
the demand is more than Rs. 20.00 lakhs, the same has
to be issued by The Commissioner.In case of suppression
of facts, fraud etc., the Show Cause Notice can be issued
by The Assistant Commissioner if the demand is upto Rs.
20.00 lakhs. Above Rs. 20.00 lakhs demand, the Show
Cause Notice should be issued by the Commissioner.
4] Show Cause Notice must be complete in all respects &
duty signed by the proper officer.
5] Show Cause Notice must be served to the Assessee.
6] Wrong mention of Rule or Section does not vitiate Show
Cause Notice.
7] Corrigendum to Show Cause Notice can be issued
clarifying the earlier Show Cause Notice, but no
additional charges can be made in the Corrigendum.
14.8 CESTAT :1] Central Excise & Service Tax Appellate Tribunal decides
the appeals filed against the order passed by The
Commissioner & Commissioner (Appeals).
2] There are five Tribunals in the country as under
Northern Bench New Delhi
Western Bench Mumbai
Eastern Bench Kolkata
Southern Bench Chennai
Southern Bench Bangalore
3] Tribunal is a quasi-judicial body & the members are
equivalent to High Court judges.
4] CESTAT (Procedure) Rules, 1982 govern the procedures
to be followed in CESTAT.
15.6 :-RULE 27 :-GENERAL PENALTY :A breach of these rules shall , where no other penalty is
provided herein or in the Act, be punishable with a penalty
which may extend to five thousand rupees & with the
confiscation of the goods in respect of which the offence is
committed.
16.3 :- SECTION 18 :- SEARCHES & ARRESTS :All searches & arrests shall be carried out in accordance
with the provisions of The Code of Criminal Procedure,
1898.
16.4 :- RULE 22 :- ACCESS TO A REGISTERED
PREMISES :An officer empowered by the Commissioner in this
behalf shall have access to any premises registered under
these rules for the purpose of carrying out any scrutiny,
verification & checks as may be necessary.
Every assessee shall furnish to the officer empowered ,
a list in duplicate, of all the records prepared & maintained
by the assessee for accounting of transactions in regard to
receipt, purchase, manufacture, storage, sales or delivery
of the goods including inputs & capital goods.