TaxTMI 
TaxTMI 
2021 (1) TMI 726
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....result of which all the appeals have been dismissed by the Commissioner (Appeals). 3. The records indicate that the Commissioner (Appeals) had passed the following three main orders, while deciding the 415 Appeals that had been filed : (i) The order dated November 22, 2019 upholding the orders of assessments of 368 Bills of Entry. This order, therefore, has led to the filing of 368 appeals before the Tribunal bearing numbers from C/50246 to 50613/2020. (ii) The order dated November 22, 2019 upholding the order of assessment of 19 Bills of Entry. This has resulted in the filing of 19 appeals before the Tribunal bearing numbers C/50623 to 50641/2020. (iii) The order dated November 22, 2019 upholding the order of assessment of 28 Bills of Entry. Accordingly, 28 appeals have been filed before the Tribunal bearing numbers C/50658 to 50685/2020. 4. The Appellant is a scheduled airline operator, engaged in the business of transportation of passengers and goods by air. In order to carry out the scheduled operations in India, the Appellant imported aircrafts and it is stated that when the engines/ auxiliary power units or other parts of the aircrafts began t....
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....eals. 7. To appreciate the contentions advanced by Shri B L Narasimhan, learned Counsel appearing for the Appellant and Shri Sunil Kumar, learned Authorised Representative of the Department, it is necessary to examine certain sections of The Customs Tariff Act 1975 [the Tariff Act] and the Exemption Notification that are relevant for the purpose of deciding these appeals. 8. Section 2 of the Tariff Act provides that the rates at which duties of customs shall be levied under the Customs Act 1962 [the Customs Act ] have been specified in the First and Second Schedules. It is reproduced below: 2. Duties specified in the Schedules to be levied. "The rates at which duties of customs shall be levied under the Customs Act, 1962 (52 of 1962 ) are specified in the First and Second Schedules." 9. Section 3 of the Tariff Act provides for levy of additional duty equal to excise duty, sales tax, local taxes and other charges. Sub-sections (1), (7), (8), (9), (11) and (12) of section 3 are relevant and are reproduced below. It needs to be noted that sub-section (7) of section 3 of the Tariff Act was substituted with effect from July 1, 2007. "Section 3. Levy o....
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....ct or under any other law for the time being in force. (12) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties shall, so far as may be, apply to the duty or tax or cess, as the case may be, chargeable under this section as they apply in relation to the duties leviable under that Act." 10. The relevant portions of the Exemption Notification are reproduced below: "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within any Chapter of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and specified in column (2) of the Table below when re-imported into India, from so much of the duty of customs leviable thereon which is specified in the said First Schedule, and the integrated tax, compensation cess leviable thereon respectively under sub-section (7) and (9) of section 3 of the said Customs Tariff Act, as is in excess of the amount indicated in the....
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....The Central Government, through various amending notifications, specifically provided for inclusion of integrated tax, wherever it deemed fit, post the introduction of Goods and Service Tax regime; (v) Where the language of any Notification is unambiguous, the plain meaning has to be assigned to such unambiguous language; (vi) Integrated tax is not a duty of customs and, therefore aircrafts/ parts on re-import after repairs overseas are eligible for full exemption from integrated tax under the Exemption Notification; (vii) Integrated Tax is levied under the Integrated Tax Act but collected under the Tariff Act only for convenience and is not a duty of customs; (viii) The activity of repairs is a supply of service even if an element of supply of goods is included in it; and (ix) In order to constitute import of service under Integrated Tax Act, all the ingredients mentioned therein have to be fulfilled. 12. Learned Authorised Representative of the Department, however, supported the impugned order passed by the Commissioner (Appeals) and made the following submissions: (i) The intention of the Exemption Notification is to give ....
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....25. Power to grant exemption from duty.- (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon." (2) xxxxxx 15. It is in exercise of the power conferred by sub-section (1) of section 25 of the Customs Act that the Exemption Notification has been issued. The Central Government exempted the goods falling within any Chapter of the First Schedule to the Tariff Act and specified in column (2) of the Table when re-imported into India, from so much of the duty of customs leviable thereon which is specified in the First Schedule, and the integrated tax, compensation cess leviable thereon respectively under sub-sections (7) and (9) of section 3 of the Tariff Act, as is in excess of the amount indicated in the corresponding entry in column (3) of the Table. 16. The Exemption Notification makes reference to the Tariff Act. Section 12 of....
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....ty of customs leviable under this Act;" 19. Section 12 of the Customs Act deals with dutiable goods. Sub-section (1) of section 12 is reproduced below: "Section 12. Dutiable goods.-(1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 or any other law for the time being in force, on goods imported into, or exported from India." 20. A bare perusal of section 12(1) of the Customs Act shows that duties of customs shall be levied at such rates as are specified under the Tariff Act or any other law for the time being in force, on goods imported into, or exported from India. The contention of learned Authorized Representative of the Department is that section 12(1) of the Customs Act leaves no manner of doubt that duties of customs are levied not only under the provisions of the Customs Act and the Tariff Act but also under 'any other law for the time being in force'. Thus, the integrated tax levaible on imported goods by the Integrated Tax Act would also be a duty of customs and, therefore, the Appellant was correctly denied exemptio....
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.... to excise duty. The Supreme Court held that since section 19 of the Customs Act applies to determination of "duty", it would only relate to "duty" under the Customs Act as is clear from section 2 (15) of the Customs Act and not the additional duty under section 3 of the Tariff Act. The relevant portion of the judgement is reproduced below: "3. In the first place, Section 19 of the Customs Act is inapplicable to the assessment of additional duty under the Customs Tariff Act. Section 19 applies to "duty" that is, "duty under the Customs Act", as is clear from Section 2(15) of the Customs Act. The method of determination of Customs duty thereunder where goods consist of articles liable to different rates of Customs duty is not applicable for the purposes of assessment of additional duty under the Customs Tariff Act." (emphasis supplied) 24. It is, therefore, clear that even the levy of additional duty under section 3 of the Tariff Act, which is in addition to the duty of customs under section 2 of the Tariff Act, would not be duty of customs for the purpose of Notifications issued under the Customs Act. 25. The Bombay High Court in Ceat Tyres of India Limited vs. Un....
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....hall be levied and collected in accordance with the provisions of section 3 of the Tariff Act on the value as determined under the Tariff Act at the point when duties of customs are levied on the said goods under section 12 of the Customs Act. Section 5 of the Integrated Tax Act is reproduced below:- "Section 5. Levy of collection - (1) Subject to the provisions of sub-section (2), there shall be levied a tax called the integrated goods and services tax on all inter-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 of the Central Goods and Services Tax Act and at such rates, not exceeding forty per cent., as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person: Provided that the integrated tax on goods imported into India shall be levied and collected in accordance with the provisions of section 3 of the Customs Tariff Act, 1975 (51 of 1975) on the value as determined under the said Act at the point when duties of customs are levied on the said goods under se....
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....ed to duty of customs in the Exemption Notification has to be understood. 32. A perusal of the main body of the Exemption Notification would indicate that it refers not only to duty of customs leviable thereon which is specified in the First Schedule to the Tariff Act, but also to integrated tax and compensation cess which are leviable thereon respectively under sub-sections (7) and (9) of section 3 of the Tariff Act. However, column (3) of the Table accompanying the main Notification for serial no. 2 refers to only duty of customs (without mentioning 'leviable thereon which is specified in the First Schedule'), on the fair cost of repairs carried out with insurance and freight charges. 33. It is for this reason that it has been contended by the learned Authorised Representative of the Department that omission to mention "specified in the said First Schedule" in the conditions set out in column (3) of the Table for serial no. 2 after "Duty of customs", would mean that the Government intended to include integrated tax and compensation cess in the expression duty of customs. 34. It is not possible to accept this reasoning advanced by the learned Authorised Representative of ....
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....make the intention clear beyond any doubt that the main body of the Exemption Notification includes duty of customs specified in the First Schedule. Thus, no significance can be attached to the fact that 'specified in the First Schedule' has not been mentioned after 'Duty of customs' in the conditions set out at column no. (3) in the Table for serial number 2 of the Exemption Notification. 36. This precise issue was considered by the Supreme Court in Union of India and others vs. Modi Rubber Limited and Others [1986 (25) ELT 849 (S.C)], though it is in the context of duty of excise levied under the Central Excises & Salt Act, 1944. The Supreme Court noticed that in some of the exemption notifications, the Central Government used specific language indicating that the exemption granted was in respect of the excise duty leviable under the Central Excises & Salt Act, 1944, but in some exemption notifications only 'duty of excise' was mentioned without specifying 'leviable under Central Excises & Salt Act, 1944'. The Supreme Court observed that it is not uncommon that at times the Legislature, with a view to making its intention clear beyond doubt, uses words which may not be strictl....
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....te legislation by Executive. The officer drafting a particular piece of subordinate legislation in the Executive Department may employ words with a view to leaving no scope for possible doubt as to its intention or sometimes even for greater completeness, though these words may not add anything to the meaning and scope of the subordinate legislation. Here, in the present notifications, the words `duty of excise leviable under the Central Excises and Salt Act, 1944' do not find a place as in the other notifications relied upon by the respondents. But, that does not necessarily lead to the inference that the expression `duty of excise' in these notifications was intended to refer to all duties of excise including special and auxiliary duties of excise. The absence of these words does not absolve us from the obligation to interpret the expression `duty of excise' in these Notifications. We have still to construe this expression what is its meaning and import and that has to be done bearing in mind the context in which it occurs. We have already pointed out that these notifications having been issued under Rule 8(1), the expression `duty of excise' in these notifications must bear the ....
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....erted. Even then, the rice husk was not deleted. No explanation was offered therefor. Both rice husk and paddy husk, thus, found place in the notification. Indisputably, therefore, paddy husk was subjected to for the first time by reason of the said notification dated 6-6-1996. Yet again, while giving a purported new look to the entry in the notification dated 15-1-2000, the words 'rice husk' and 'paddy husk' have respectively been mentioned. Even then no attempt was made to issue any clarification. Two expressions having been used ordinarily two different meanings should be assigned thereto. If by reason of a notification, taxes are sought to be imposed upon a new commodity applying Heydon's Rules (3 Co. Rep: 7a; 76 E.R. 637), it must be held that the mischief was sought to be remidied thereby. It is, therefore, difficult to agree with Mr. Gupta that rice husk and paddy husk denote the same commodity." 41. The Supreme Court made the same observations in Kumho Petrochemicals Company Limited and the relevant paragraph is reproduced below: "32. ..................The learned counsel for respondent rightfully pointed out that the legislature has consciousl....
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....1) of section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of the Notification of the Government of India in the Ministry of Finance, (Department of Revenue), No. 97/95-Customs, dated the 26 May, 1995 the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within any Chapter of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and specified in column (2) of the Table hereto annexed (hereinafter referred to as the said table) when re-imported into India, from so much of the duty of customs leviable thereon which is specified in the said First Schedule, the additional duty leviable under 3 of the said Customs Tariff Act and special duty of customs leviable under sub-section (1) of Section 68 of the Finance (No. 2) Act, 1963 (33 of 1996), as is in excess of the amount indicated in the corresponding entry in column (3) of the said Table. Table Sl No. Description of goods Amount of Duty (1) (2) (3) 1. xxxx xxxx xxx xxxx xxxx xxxx 2. Goods, other than those falling under Sl No. 1 exported for repairs abroad Duty of customs which would be leviable if ....