Finance Bill, 2015 enacted: Significant changes under the Central Excise and the Customs

Dear Professional Colleague,

Finance Bill, 2015 enacted: Significant changes under the Central Excise and the Customs

The Hon’ble President has given assent to the Finance Bill, 2015 on Thursday, May 14, 2015. Accordingly, the Finance Bill, 2015 has now become Finance Act (No.20), 2015. We have already provided the changes in Service tax that are effective from May 14, 2015 and the changes that will become effective only from the date to be notified in our earlier newsletter.

Now, we are summarizing herewith changes under the Central Excise and the Customs effective from May 14, 2015 for easy digest:

PART I: CHANGES UNDER THE CENTRAL EXCISE EFFECTIVE FROM MAY 14, 2015:

Changes under various Sections under the Central Excise Act, 1944 (“the Excise Act”)

Section 11A: Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded

a. Section 11A(5), 11A(6) and 11A(7) of the Excise Act contains the provisions relating to the category of cases where fraud, collusion, wilful mis-statement, etc., is involved but the details relating to the transactions are available in the specified record like reduced penalty of 50%, maximum penalty of 25% in cases where the duty amount, interest and reduced penalty is paid before issuance of SCN etc.

b. Effective from May 14, 2015, Section 11A(5), 11A(6) and 11A(7) of the Excise Act are omitted so as to bring uniformity in treatment of cases involving fraud, collusion, wilful mis-statement, etc. irrespective of whether the details of the transaction is so recorded or not;

c. New sub-section 16 inserted after Section 11A(15) of the Excise Act to provide that the provisions of Section 11A shall not apply to cases where the non-payment or short payment of duty is self-assessed and declared as duty payable by the assessee in the periodic returns filed and that in such cases recovery of duty shall be made in such manner as may be prescribed;

d. Sub-clause (vi) inserted in Explanation 1 to Section 11A of the Excise Act (containing provision relating to ‘relevant date’) to provide that in cases where only interest is required to be recovered, the relevant date would be the date of payment of duty.

e. Transition provisions – Explanation 2 has been substituted to provide that if Show Cause Notice was not issued prior to enactment of the Finance Bill, 2015, recovery of duty will be governed by the provisions as amended.

Section 11AC: Rationalization of penal provisions:

Non-fraud cases: In cases not involving fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Excise Act or Rules with the intent to evade payment of duty, in the following manner:

a. Ceiling of 10% of the duty determined under Section 11A(10) of the Excise Act or Rs. 5,000/-, whichever is higher has been incorporated;

b. No penalty leviable if duty amount and interest is paid within 30 days of issuance of SCN and proceedings in respect of such duty amount and interest shall be deemed to have been concluded;

c. Reduced penalty equal to 25% (i.e. 2.5% of Duty) of the penalty if the duty amount, interest and reduced penalty is paid within 30 days of communication of the Adjudication Order.

d. If the duty amount or penalty is increased in any Appellate proceedings, then the benefit of reduced penalty (i.e. 25%) shall be admissible if duty, interest and reduced penalty on such increased amount is paid within 30 days of such Appellate Order.

Fraud cases: In cases involving fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Excise Act or Rules with the intent to evade payment of duty, in the following manner:

a. Penalty shall be of 100% of the duty determined under Section 11A(10) of the Excise Act. However, in respect of the cases where the details relating to such transactions are recorded in the specified record for the period beginning with the April 8, 2011 upto the date on which the Finance Bill, 2015 receives the assent of the President [i.e. May 14, 2015] (both days inclusive), the penalty shall be 50% of the duty so determined;

b. Reduced penalty equal to 15% of the duty amount alleged in the SCN shall be levied if duty, interest and reduced penalty is paid within 30 days of issuance of SCN. Further proceedings in respect of such duty amount, interest and penalty shall be deemed to be concluded;

c. Reduced penalty equal to 25% of the duty amount, determined by the Central Excise officer by an Adjudication Order, shall be levied if the duty, interest and reduced penalty is paid within 30 days of communication of Order of the Central Excise Officer; and

d. If the duty amount gets modified in any Appellate proceedings, then the amount of penalty and the interest payable thereon shall stand modified accordingly, and after taking into account the amount of duty so modified, the person who is liable to pay such amount of duty, shall also be liable to pay the amount of penalty and interest so modified;

e. If the duty amount or penalty is increased in any Appellate proceedings, then the benefit of reduced penalty (i.e. 25%) shall be admissible if duty, interest and reduced penalty on such increased amount is paid within 30 days of such Appellate Order.

Transition provisions: Explanation I prescribes transition provision in the following manner:

a. Amended provisions of Section 11AC of the Excise Act shall apply to cases where no SCN is issued, before the date of enactment of the Finance Bill, 2015 (i.e. May 14, 2015); and

b. In cases where SCN has been issued but no Adjudication Order has been issued before the date of enactment of the Finance Bill, 2015 (i.e. May 14, 2015),assesse shall be eligible to closure of proceedings on payment of duty and interest in non-fraud cases or on payment of duty, interest and 15% penalty in fraud cases, within 30 days from the date on which the Finance Bill, 2015 receives the assent of the President (i.e. May 14, 2015);

c. In cases where Adjudication Order is passed after the date of enactment of the Finance Bill, 2015 (i.e. May 14, 2015), assesse shall be eligible to benefit of reduced penalty of 25% of penalty amount in non-fraud cases or 25% of duty amount in fraud cases, subject to the condition that the payment of duty, interest and penalty is made within 30 days of the communication of the Order.

Provisions relating to Settlement Commission has been amended to, inter alia, include amendment in the proviso to Section 31(c) to delete the reference to “in appeal or revision, as the case may be” so as to provide that when any proceeding is referred back, whether in appeal or revision or otherwise, by any Court, Appellate Tribunal or any other Authority to the Adjudicating Authority for a fresh adjudication or decision, then such case shall not be entitled for settlement.

Penalty provided under sub-sections (4) and (5) of Section 37 of the Excise Act (Power of Central Government to make Rules) increased to Rs. 5000/-. Earlier it was Rs. 2000/-.

S. No. 205A of Notification No. 12/2012-Central Excise dated March 17, 2012 exempts railway or tramway track construction material of iron and steel from payment of Excise duty on the value of rails, subject to conditions specified therein. This exemption is being made applicable retrospectively for the period from March 17, 2012 to February 2, 2014.

PART II: CHANGES UNDER THE CUSTOMS EFFECTIVE FROM MAY 14, 2015

Changes under various Sections under the Customs Act, 1962 (“the Customs Act”)

Section 28: Rationalization of penal provisions:

Non-fraud cases: In cases not involving fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Customs Act or Rules with the intent to evade payment of duty, in the following manner:

Proviso inserted in Section 28(2) of the Customs Act: No penalty leviable if duty amount and interest is paid within 30 days of issuance of SCN and proceedings in respect of such duty amount and interest shall be deemed to have been concluded;

Fraud cases: In cases involving fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Customs Act or Rules with the intent to evade payment of duty, in the following manner:

Section 28(5) of the Customs Act amended to provide that reduced penalty equal to 15% (instead of 25% earlier) of the duty amount alleged in the SCN shall be levied if duty, interest and reduced penalty is paid within 30 days of issuance of SCN.

Transition provision: Explanation 3 inserted to prescribe transition provision in the following manner:

In cases where SCN has been issued but no Adjudication Order has been issued before the date of enactment of the Finance Bill, 2015 (i.e. May 14, 2015), assesse shall be eligible to closure of proceedings on payment of duty and interest in non-fraud cases or on payment of duty, interest and 15% penalty in fraud cases, within 30 days from the date on which the Finance Bill, 2015 receives the assent of the President (i.e. May 14, 2015);

Section 112: Penalty for improper importation of goods etc.

Section 112 is being amended so as to substitute sub-clause (ii) of clause (b) to provide that penalty for improper importation of the dutiable goods other than the prohibited goods would be higher of the following: 

1. Penalty not exceeding 10% of the duty sought to be evaded or

2. Rs. 5,000/-

It is also being provided that if the duty as determined under Section 28(8) of the Customs Act and the interest payable thereon under Section 28AA thereof is paid within 30 days from the date of communication of the Order of the proper officer determining such duty, the amount of penalty liable to paid by such person under this Section shall be 25% of the penalty so determined.

Section 114: Penalty for attempt to export goods improperly etc.

Section 114 is being amended so as to substitute clause (ii) to provide that penalty for improper exportation of the dutiable goods other than the prohibited goods would be higher of the following: 

1.Penalty not exceeding 10% of the duty sought to be evaded or

2. Rs. 5,000/-

It is also being provided that if the duty as determined under Section 28(8) of the Customs Act and the interest payable thereon under Section 28AA thereof is paid within 30 days from the date of communication of the Order of the proper officer determining such duty, the amount of penalty liable to paid by such person under this Section shall be 25% of the penalty so determined.

Provisions relating to Settlement Commission has been amended to, inter alia, include amendment in the proviso to clause (b) of Section 127A to delete the reference to “in appeal or revision, as the case may be” so as to provide that when any proceeding is referred back, whether in appeal or revision or otherwise, by any Court, Appellate Tribunal or any other Authority to the Adjudicating Authority for a fresh adjudication or decision, then such case shall not be entitled for settlement.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks & Best Regards,

Bimal Jain
FCA, FCS, LLB, B.Com (Hons)
Email: bimaljain@hotmail.com
Web: www.a2ztaxcorp.com

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