TaxTMI 
TaxTMI 
2022 (9) TMI 1109
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....on, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article' in section 3 of Customs Tariff Act, 1975 providing for domestic duty equivalence on imported goods, though altered to the substitute impost by separate enablement therein, remains unchanged and yet it is now cause for a new species of dispute. The differential duty of Rs. 4,47,00,863 arising from denial of rate of tax at 12% and 5% claimed by the importer and attended upon by the inevitable confiscation under section 111 of Customs Act, 1962 for imposition of penalty under section 112 of Customs Act, 1962 is the cavil of the appellant. 3. The classification of the impugned goods, viz., 'diagnostic kits -ELISA', 'diagnostic kits - CLIA', 'diagnostic reagents on backing', 'controls and calibrators' and 'other consumable reagents', corresponding to tariff ite....
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....ariff item', 'sub-heading', 'heading' or 'Chapter' that have the same meaning as assigned in First Schedule to Customs Tariff Act, 1975. It was further pointed out that the same rules for interpretation, and including the several notes, are, in accordance with Explanation (iii) and Explanation (iv) of the said rate notification, to be applied for interpretation. He submitted that the two types of diagnostic kits imported by appellant, finding specific mention at serial no. 154 ('enzyme linked immunoabsorbent assay (ELISA) kits') and serial no. 178 (...CLIA diagnostic kits) of List 1 referenced with'....and diagnostic test kits...', classifiable in chapter 30 or any other in the First Schedule to Customs Tariff Act, 1975, corresponding to serial no. 180 of Schedule I of the rate notification, are chargeable to tax at 5%. Drawing our attention to the contents of the impugned order, he pointed out to the lack therein of any discussion for disallowing their claim to such coverage. He further drew our attention to 'all diagnostic kits and reagents' of heading 3822 of First Schedule to Customs Tariff Act, 1975, at serial no. 180 of Schedule II of the rate notification, as the appropr....
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....rits of the claims so argued, we must, at the outset, respond to our own disquiet about our statutory competence to adjudicate thereon and which, naturally, begs the adjunct question of whether a subordinate authority can undertake that which we may not. 9. In resolving that dilemma, it would be appropriate to take stock of the nature of the levy, the source of the authority to collect and the extent to which the 'revenue neutral' paradigm shift of July 2017 has left its mark on the determinative contours of assessment under Customs Act, 1962. Before the transition to goods and services tax (GST), the basic customs duty authorized to be collected under section 12 of Customs Act, 1962 was, inter alia, supplemented by 'additional duty' - equal to 'excise duty ...on a like article if produced or manufactured in India' - and 'special additional duty' - as would 'counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India...at a rate not exceeding four per cent of the value..' under the authority of section 3 of Customs Tariff Act, 1975. The latter involved simple applicati....
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....ce. It is also to be borne in mind that this context makes it apparent that there is next to no revenue available to the exchequer from this levy and the parallel universe of record was intended to carry forward the erstwhile mechanism in the scheme of assessment without particular consequence. Having accommodated the levy by proviso in section 5 of the Integrated Goods and Services Tax (IGST) Act, 2017, any proposition that such collection is essential to the integrity of the scheme of the tax does not hold either. 11. Despite the incorporation in Customs Tariff Act, 1975 of the parallel world corresponding to the new regime, the legality of '7) Any article which is imported into India shall, in addition, be liable to integrated tax at such rate, not exceeding forty per cent. as is leviable under section 5 of the Integrated Goods and Services Tax Act, 2017 on a like article on its supply in India, on the value of the imported article as determined under sub-section (8). 'in section 3 appears to need the simultaneous support of '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 Cus....
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.... (CGST) Act, 2017 to which the rate as notified under the relevant statutes is applied by the assessee for discharge of liability that is reflected in the return which, in turn, is scrutinized by the 'central tax officer' for correctness. 12. The scheme of rule 3(7) of Customs Tariff Act, 1975, therefore, imposes 'integrated tax' on imported goods, at a rate as prescribed under the authority of section 5 of Integrated Goods and Services Tax (IGST) Act, 2017, on value as prescribed in section 3(8) therein which is the arithmetical addition of duties of customs to value for assessment of imported goods and posing no discretionary authority therein. In the light of this being a distinct 'integrated tax', and not an additional duty of customs equal to another duty charged and collected under a scheme of assessment, the adoption of rate claimed by an importer can be disputed only by such officers conferred with authority to do so. Such officers with jurisdiction to intrude into self-assessment are central tax officers. The enabling of levy of 'integrated tax' in Customs Tariff Act, 1975 does not confer any power to intrude upon rate claimed in the bill of entry and 'proper officer', in....
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.... calibrators', 'controls' and others such as 'wash solutions', 'wash buffers', 'reference fluid', 'diluent packs', 'maintenance packs' and 'marker kits' with claim for coverage under serial no. 180 of Schedule I in the 'integrated tax' rate notification owing to specific enumeration in List 1 for the first two items and under serial no. 80 of Schedule II in the 'integrated tax' rate notification owing to description corresponding to it. It is seen that the columnar reference to First Schedule to Customs Tariff Act, 1975 is to 'Chapter 30 or any other chapter', insofar as the former is concerned, and to 'heading 3822' as far as the latter is concerned; considering the specifics therein, the claim for application of these rates of 'integrated tax' respectively is not to be brushed aside. 15. The effect of the proposition of Revenue, in support of the adjudication order, on the part of Learned Authorized Representative is that the impugned goods are not specifically emplaced in the claimed Schedules or in Schedule IV, V and V of the 'integrated tax' rate notification with consequent application of the residuary serial no. 453 corresponding to 'goods which are not specified in Schedul....
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.... Department, from the report of the Chemical Examiner, CRCL and from HSN, it is' quite clear that the goods are classifiable as "Denatured Salt" falling under Chapter Heading No. 25.01. The Department has not shown that the subject product is not bought or sold or is not known or is dealt with in the market as Denatured Salt. Department's own Chemical Examiner after examining the chemical composition has not said that it is not denatured salt. On the other hand, after examining the chemical composition has opined that the subject matter is to be treated as Sodium Chloride.' and further in Hindustan Ferodo Ltd v. Collector of Central Excise, Bombay [1997 (89) ELT 16 (SC)] that '3. It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed. xxxx 7. Learned Counsel for the Revenue submitted that the matter be remanded to the Tribunal so that the evidence on record ma....