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In the issue Customs

Foreign trade policy (FTP)

Customs, FTP and WTO newsletter

In the issue Customs

Notifications and circulars

• Direct movement of goods from a Gateway port to a CFS in another customs station, and vice-versa, allowed on compliance with prescribed

procedure

• Risk Management System in exports to

• Refund claim of SAD of Customs filed after one year from date of payment of tax liable to be rejected

Foreign Trade Policy Notifications and circulars

• Not mandatory to re-export of defective parts originally exported from India and thereafter imported exclusively for undertaking testing purpose

• One new pre-shipment inspection

June 2013: Volume 16 Issue 3

Foreign trade policy (FTP) Contacts

• Risk Management System in exports to be introduced from 15 July 2013 in customs locations which have EDI system

• 24x7 customs clearance from 14 new air cargo complexes for specified categories of imports and exports, starting from 01 June 2013

Case law Valuation

• Royalty paid not includible in the value of imported goods unless it has nexus with the imported goods

Others

• Refunds arising as a consequence of finalization of provisional assessment made before July 2006 allowable without the test of unjust enrichment

• One new pre-shipment inspection agency notified for the purpose of certification of imported goods Case law

• Exemption from payment of SAD available on stock transfer of goods from SEZ to DTA

• Custom authorities have no jurisdiction to decide whether the imported goods which are covered under LOP are required for authorized operations of SEZ unit or not

Free Trade Agreement (FTA)

• Concessional rate of basic customs duty will be available on import of specified goods from Republic of Haiti

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In the issue Customs

Customs

• The Central Government has increased the Countervailing duty payable in lieu of excise duty (CVD) from 4% to 6% on specified gold ores and concentrates and specified gold-ore bars. Furthermore, the Basic Customs Duty (BCD) has been increased from 6% to 8% on specified gold bars, specified gold coins and platinum.

(Notification No. 31/2013 dated 5 June, 2013)

• The Central Government has allowed direct movement of goods from a Gateway port to a Container Freight Station (CFS) of another Customs Station

1. Allows low risk consignments to be cleared based on self assessment of the declarations by exporters.

2. Contributes to the reduction in dwelling time, thereby reducing the transaction cost and making the business more competitive.

3. The present practice of routine verification of self-assessment and examination of shipping bills will be discontinued.

4. After issuing of the Let Export Order, there will be a post-clearance audit of the selective shipping bills for scrutiny of declarations with reference to export incentives, duty drawbacks, etc.

Station (CFS) of another Customs Station ,and vice-versa, under a prescribed procedure. However, this facility shall be extended only to a CFS that is at a

considerable distance from the Inland Container Depot (ICD).

(Circular No. 22/2013 dated 24 May, 2013)

• The Central Government recently decided to introduce Risk Management System (RMS) in exports, from 15 July 2013 onwards, in customs locations where an Electronic Data Interchange (EDI) system is operational. Initially, export RMS will be introduced at ICD Mulund and ICD Patparganj. Some of the important features of export RMS are:

drawbacks, etc.

(Circular No. 23/2013 dated 24 June, 2013)

• The Central Government has extended 24x7 customs clearance from identified air cargo complexes,effective 01 June 2013,for the following categories of imports and exports:

1. Facilitated Bills of Entry where no examination and assessment is needed; and

2. Factory-loaded export containers and export consignments covered by Free Shipping Bills

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The air-cargo complexes are:

Furthermore, the 24x7 Customs clearance facility from the Air Cargo Complexes at Chennai, Delhi, Mumbai

• The Bombay High Court, in Forbo Siegling Movement Systems India Pvt LtdvUnion of India & Ors (2013-TIOL-

Sl. No. Air Cargo Complex Sl. No. Air Cargo Complex

1 Ahmadabad ₈ Goa

2 Amritsar ₉ Hyderabad

3 Bangalore ₁₀ Vishakhapatnam

4 Cochin ₁₁ Indore

5 Calicut ₁₂ Jaipur

6 Thiruanantapuram ₁₃ Nashik

7 Coimbatore ₁₄ Vishakhapatnam

Complexes at Chennai, Delhi, Mumbai and Bangalore will cover export of all goods from 1 June, 2013.

(Instruction No. 2/2013 dated 31 May, 2013)

Case law Valuation

• In Auto StoresvCC (2013-TIOL-791- CESTAT-MUM), the Tribunal held that the assessable value of parts that do not have a brand name and are duplicates, could not be re-determined on the Retail Sale Price (RSP) at which parts of well- known brands are sold, as the goods were not comparable.

LtdvUnion of India & Ors (2013-TIOL- 458-HC-MUM), held that the transaction value could not be rejected by the Special Valuation Branch of Customs without apprising the importer about the grounds of doubting the Transaction Value and granting reasonable opportunity of hearing, as to do so would be to violate the principles of natural justice.

• In CCvMax Atotech Ltd (2013-TIOL- 893-CESTAT-MUM), the Tribunal held that where royalty was paid on the net sale price for manufacturing operations in India, excluding the landed value of imported goods, such a royalty was not includible in the assessable value of imported goods as it was not a condition of sale.

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• The Tribunal, in Johnson & Johnson LtdvCC (2013 (292) ELT 111), held that where technical know-how was for value-addition in India and not in respect of raw materials imported, payment for it was not includible in the assessable value of imported goods as it was not a condition of sale.

• In CCvVee Kay Polycoats Ltd (2013 (292) ELT 254), the Tribunal held that the transaction value could not be rejected by the custom authorities in the absence of any proof of payment to the overseas supplier over and above the invoice value.

Others

• In Napino Auto & ElectronicsvCC (2013-TIOL-861-CESTAT-DEL), the

review applications before the

Commissioner of Customs (Appeals) by the Customs Department, was to be reckoned from the date of the order and not from the date of assessment of the Bill of Entry.

• The Tribunal, in Samalkot Power Ltdv CC (2013 (197) ECR 0106), held that where another company was the owner/developer of a proposed power plant, it could not be considered as substantial expansion of an existing power plant owned by a separate company for the purpose of securing Project Import benefit on the import of products by the owner of the proposed plant.

• In Global InternationalvCC (2013 (292) ELT 102), the Tribunal held that (2013-TIOL-861-CESTAT-DEL), the

Tribunal held that refunds arising as a consequence of finalization of

provisional assessment made before July, 2006 were allowable without the test of unjust enrichment, as the principle was not applicable prior to then.

• The Madras High Court, in Vijay Anand vCESTAT, Chennai (2013-TIOL-442- HC-MAD), held that once an appeal was filed against an original order, it was mandatory to pay the amount ordered, as a condition of precedent for taking up the appeal.

• In CCvHimja Impex (2013-TIOL-919- CESTAT-KOL), the Tribunal held that the limitation period in the case of

(292) ELT 102), the Tribunal held that refund claims of Special Additional Duty (SAD) of Customs filed over one year from the date of payment of tax were liable to be rejected as they did not fulfil the conditions prescribed in the relevant notification.

• The Tribunal, in M B EnterprisesvCC (2013 (292) ELT 451), held that the refund of SAD could not be denied where the duty element was not shown separately on the invoice and the importer had submitted a CA certificate stating that duty had not been passed on to the customers and fulfilled other specified conditions, in the absence of any evidence to the contrary.

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In the issue Customs

Foreign trade policy (FTP) Contacts

Foreign Trade Policy

• The Central Government has asserted that it is not mandatory to re-export defective parts/spares originally exported from India and thereafter re- imported exclusively for undertaking root cause analysis, testing and evaluation in India.

(Notification No. 24/ (RE 2013) /2009- 14 dated 19 June, 2013)

• The Central Government has asserted that goods imported against payment of freely convertible currency may be exported to notified countries against the realization of export proceeds in Indian currency, subject to the

Mega Power Projects;

− Deemed export benefits available under para 8.2(f) of FTP are available only if supplies are under

International Competitive Bidding (ICB), except for Mega Power projects. For Mega Power projects the supplies could be under ICB or not. If supplies are under ICB, then such supplies are exempted from payment of Terminal Excise Duty (TED), and if not then such supplies are eligible for refund.

(Circular No. 1 (RE-2013)/2009-2014 dated 29 May, 2013)

• The Central Government has notified a new Pre-shipment Inspection Agency, Indian currency, subject to the

achievement of a minimum value addition of 15%. Currently, exporters may take advantage of this scheme when dealing with Iran, which has been notified by the Director General of Foreign Trade.

(Notification No. 16/ (RE 2013) /2009- 14 dated 6 June, 2013 and Notification No. 17/ (RE 2013) /2009-14 dated 10 June, 2013)

• The Central Government has clarified certain points in relation to the deemed export benefits available under Chapter 8 of the FTP, such as:

− Deemed export benefits are not available for supplies made to Non-

SNG Inspection Services, with its head office located at Uttar Pradesh, India and branch offices in Malaysia and Vietnam for the purpose of certification in relation to imported goods under the FTP.

(Public Notice No. 15 (RE-2013)/2009- 2014 dated 3 June, 2013)

• The DGFT has announced the

constitution of a second Task Force on transaction costs which aims to reduce the transaction costs associated with exports. The purposes of this task force are:

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− To identify reasons for high transaction costs in exports.

− To identify areas causing administrative impediments.

− To compare procedural complexities in exports between India and its major competitors.

− To suggest steps to remove

procedural complexities by adopting global best practices.

− To suggest steps to reduce paperless processing by adopting digital platforms.

The task force has been directed to submit its report to DGFT within six months. Suggestions from stakeholders, Government and Trade & Industry have also been invited by the task force. The

was not construed as sale and was therefore exempt from levy of Value Added Tax (VAT)/Central Sales Tax (CST).

• The Tribunal, in the case of Adinath Trade LinkvCC (2013- TIOL-874- CESTAT-AHM), held that refund of SAD paid on supply of goods from a SEZ to DTA was allowable on the ground that such supplies were construed as imports in terms of section 30 of the SEZ Act 2005 ,in compliance with the condition of ‘import’ as defined under the Customs Act, 1962.

• The Madras High Court, in Shrishti Digital SolutionvAdd CC (2013- TIOL- 495-HC-MAD-CUS), held that second- hand digital multifunction print and also been invited by the task force. The

resultant decision of the task force may be formulated in the next annual supplement to the FTP, which will be issued next year.

(Trade Notice No. 02/2012 dated 20 May, 2013)

Case law

• The Authority of Advance Ruling, in GE India Industrial Pvt LtdvCC (2013- TIOL-01-ARA-CUS), held that

exemption from payment of SAD was available to goods stock transferred from Special Economic Zone (SEZ) to Domestic Tariff Area (DTA) following Notification No. 45/2005 ,dated 16 May, 2005, as stock transfer of goods

hand digital multifunction print and copying machines were freely importable without obtaining any import license from DGFT if the importer was able to satisfy that the machines, though restricted under the previous FTP, were imported in

compliance with condition prescribed in the Hand Book of Procedures.

• In CCvGopi Chand Krishan Kumar Bhatia (2013-TIOL-920-CESTAT-DEL), the Tribunal held that customs duty could not be demanded & a penalty could not be invoked against the transferee importer availing benefit under the Duty Entitlement Pass Book (DEPB)

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scheme where the DEPB script was obtained by the original license holder by fraud or misrepresentation and the importer had no knowledge about the fraud committed by the original license holder.

• The Tribunal, in Hindustan Platinum LtdvCC (2013 (292) ELT 444), held that delay in producing Export

Obligation Discharge Certificate before the custom authorities was merely a procedural lapse and benefits provided under an exemption notification issued in relation to importation of goods under an advance license could not be denied on this ground.

• The Karnataka High Court, in Amritsar

Commissioner (DC) of SEZ were required for authorized operations of the SEZ unit or not, as such jurisdiction was vested with the DC.

Foreign Trade Policy

• The Central Government has added the Republic of Haiti to the schedule of Least Developed Countries, and accordingly the concessional rate of BCD will be available on imports of specified goods from there.

(Customs Notification No. 33/2013 dated 19 June, 2013)

• The Karnataka High Court, in Amritsar Swadeshi Woolen MillsvAdd DGFT (2013 (292) ELT 183), held that benefits available under DEPB scheme could not be denied to an exporter in respect of the goods exported prior to the issuance of general instructions by the DGFT authorities for excluding certain

products exported by an exporter under this scheme, as such instructions were applicable prospectively.

• In Jindal FibresvCC (2013 (292) ELT 52), the Tribunal held that the customs authorities had no jurisdiction to decide whether the imported goods covered under the Letter of Approval (LOP) granted by the Development

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Contacts Delhi

Vivek Mishra/R. Muralidharan Ph: +91(124) 3306000 Mumbai

Dharmesh Panchal/S Satish Ph: +91 (22) 6689 1000 Kolkata

Rajarshi Dasgupta/Gopal Agarwal Ph: +91(33) 2357 9100/ 4404 6000 Bangalore

Pramod Banthia Ph: +91(80) 4079 6000

Hyderabad

Ananthanarayanan S Ph: +91(40) 6624 6394 Chennai

Harisudhan M

Ph: +91(44) 4228 5000 Pune

Nitin Vijaivergia Ph: +91(20) 4100 4444 Ahmedabad

Dharmesh Panchal/Niren Shethia Ph: +91 (22) 6689 1000

Foreign trade policy (FTP) Contacts

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