TaxTMI 
TaxTMI 
2022 (11) TMI 1046
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....ropriate writ or order to quash the assessment of duties and IGST made under impugned Bills of Entry by the Respondent No.2 enclosed in Exhibit A as violative of Articles 14, 19, 265 and 300A being unreasonable, discriminatory, arbitrary, oppressive, excessive, premeditated and without the authority of law. c) This Hon'ble Court may issue an appropriate writ or Order in the nature of Mandamus or otherwise to the respondents to re-assess the impugned Bills of Entry issued by the Respondent No.2 enclosed in Exhibit A by considering the exemption to IGST inserted vide Notification No.79/2017-Cus dated 13.10.2017 to have retrospective effect and grant the refund of duties/taxes paid by the petitioner." 2. On 10th October 2022 an order came to be passed by this Court, in which Paragraphs 1 to 5 read as under :- "1. Heard Mr. Raghuraman and Mr. Mishra and as we understand the facts of this case, import of capital goods under the valid authorisation under the Export Promotion Capital Goods Scheme (EPCG Scheme) was wholly exempted from payment of any additional duty under Section 3 of the Customs Tariff Act. Petitioner has availed of this EPCG Scheme. 2. The i....
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....urative in nature, in as much as, otherwise it would leave whole class of importers who had imported capital goods uncovered from period 1st July 2017 to 13th October 2017. Mr. Raghuraman placed reliance on a judgment of the Gujarat High Court in Prince Spintex Pvt. Ltd. vs. Union of India. 5. In our view, it would also assist the court if respondents place on record the Minutes of Meeting recorded alongwith discussion notes, file notings, representations received and the agenda placed before the Central Board of Indirect Taxes and Customs (CBI & C) that resulted in issuance of Notification No.79/2017 dated 13th October 2017. Ordered accordingly." 3. Subsequent thereto, Mr. Mishra has placed on record today a compilation of documents containing discussion notes, representation received, Minutes of the Meetings where the mandates of the Committee on exports was fixed, interactions/discussions of the Committee on exports and with stakeholders, etc. A copy of the compilation was also handed over to Mr. Raghuraman. 4. The Counsel brought to our attention Agenda Item 5 in the 22nd GST Council Meeting dated 06th October 2017, which was report and recommendations of the Com....
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....he Hon'ble Minister from Jammu & Kashmir stated that Option-1 damaged the basic structure of GST of not giving exemptions which also applied for duty exemption schemes for North- Eastern States. He stated that the basic structure of GST should not be tampered with due to operational difficulties which was largely due to delay in the delivery by the IT vendor. ................................................ He cautioned that if a regime of exemptions was introduced, the GST architecture might collapse. ..................................................................... He stated that a regime of exemption would create a very high arbitrage on both sides and once people got used to it, it would be difficult to get rid of it. .................. ........................................................... 12.10. ........................................................................... .............................................. The Hon'ble Deputy Chief Minister of Bihar observed that the officers from the States of Gujarat, Maharashtra, Karnataka, Uttar Pradesh, West Bengal and Tamil Nadu were members of the Export Committee and the recommendations of the Commi....
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....on date, it is apparent that it was on account of inadvertence or oversight that while amending Notification No.16/2015-Cus, dated 1st April 2015, by Notification No.26/2017-Cus, the words, figures and brackets "Sub Section (7) and Sub Section (9)" were not inserted and that it was always the intention of the Central Government to exempt imports of capital goods under the EPCG Scheme from payment of additional duty under Section 3 of the Customs Tariff Act. We must keep in mind, when the GST regime came into force, while Section 3 of the Customs Tariff Act came to be amended by inserting Sub Sections (7) and (9) providing for levy of Integrated Tax and Goods and Service Compensation Cess, in the corresponding amendment made in Notification No.16/2015-Cus. Vide Notification No.26/2017-Cus, dated 29th June 2017, Sub Sections (7) and (9) of Section 3 were left out. Within a short time thereafter, however, Notification dated 13th October 2017, Notification No.16/2015-Cus came to be further amended and imports under the EPCG Scheme were exempted from additional duty under Sub Sections (7) and (9) of Section 3 of the Customs Tariff Act. In our view, therefore, Notification No.79/2017-Cus....
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....r the EPCG Scheme from payment of additional duty under Section 3 of the Customs Tariff Act. Notification No.79/2017, dated 13th October, 2017, therefore, has to be read as clarificatory or curative in nature, inasmuch as, otherwise it would leave as whole class of importers who had imported capital goods, uncovered during the period 1-7-2017 to 13-10-2017, allowing the department to levy additional duty under sub-sections (7) and (9) of the Customs Tariff Act on such imports, despite the fact that the Foreign Trade Policy 2015-2020 envisages imports under the EPCG Scheme at zero customs duty. Under the circumstances, the action of the respondents in levying Integrated Tax and Compensation Cess on the import of capital goods by the petitioner under a valid authorisation under the EPCG Scheme, not being in consonance with the Foreign Trade Policy 2015-2020 cannot be sustained. For the same reasons, Trade Notice No. 11/2018 dated 30-6-2017, to the extent it is stated therein that under Chapter 5 importers would need to pay IGST, is also rendered unsustainable. Consequently, subject to fulfilment of the conditions contained in the Foreign Trade Policy, 2015-2020 and the exemption Noti....