TaxTMI 
TaxTMI 
2023 (10) TMI 964
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.... which are admittedly classifiable under CTSH 2106 9099, are liable to IGST at 28% under Sr.No.9 of Schedule IV of Notification No.1/2017-IGST-Rate or at 18% under Sr. No.453 of Schedule III of the said Notification, b) Whether the demand for alleged differential IGST is without jurisdiction and barred by limitation. 2. Shri J.C. Patel, Learned counsel along with Shri Rahul Gajera learned advocate appearing on behalf of the appellant submits that the a appellant has rightly availed the exemption Notification No. 1/2017 under Serial No. 453 in respect of nutritional supplement imported by the appellant which are preparations of substances such as Creatine, Nitrates, Glutamine and Amino Acid. It is his submission that the department has co....
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.... the appellant, therefore, the entire case is of revenue neutral and on that basis also, no malafide can be attributed to the appellant and demand is time barred on this count also. He placed reliance on the following judgments: Sait Rikhaji Furtarnal AIR 1991 SC 354 Castrol India Ltd. 2005 (181) ELT 367 (SC) CCE vs Ballarpur Industries Ltd. 2007 (215) ELT 489 (SC) CCE vs Gas Authority of India Ltd 2008 (232) ELT 7 (SC) Aban Lloyd Chiles Offshore ltd 2006 (200) ELT 370 (SC) CCE vs HMM Ltd 1995 (76) ELT 497 (SC) Northern Plastic Ltd 1998 (101) ELT 549 (SC) S. Rajiv & Co. 2014 (302) ELT 412 Jet Airways (I) Ltd. 2016 (44) STR 465 upheld 2017 (7) GSTL J35 ....
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....ption of which is specified in the corresponding entry in column (3) of the said Schedules, falling under the tariff item, subheading, heading or Chapter, as the case may be, as specified in the corresponding entry in column (2) of the said Schedules. Schedule III- 18% S. NO. Chapter / Heading/Sub heading/Tariff Item Description of Goods (1) (2) (3) 23. 2106 All kinds of food mixes including instant food mixes, soft drink concentrates, Sharbat, Betel nut product known as "Supari", Sterilized or pasteurized millstone, ready to eat packaged food and milk containing edible nuts with sugar or other ingredients, 75[Diabetic foods, Custard powder; [other than batters including idli/dosa batter, Namkeens], bhuji....
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....edly, the appellant's product are not covered under any of the goods described in serial No. 9, therefore serial No. 9 is not applicable in the appellant's case. We find that serial No. 453 is applicable to goods of any Chapter which are not specified in Schedule I, II, IV, V and VI. Thus the appellant's goods is not specified under Serial No. 9 of Schedule IV, whereas it will be covered by Serial No. 453 of Schedule III of Notification 1/2017-IGST-Rate. For a better understanding, it is necessary to read the entire tariff entry of 2106 which is given below : From the above tariff entry, it can be seen that the entry covers various food preparation not elsewhere specified or included. However, out of the many items provided under tariff ....
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.... used as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In unusual cases, depending upon the context of the words "that is to say", this expression may be followed by illustrative instances. (See State of T.N. v. PyareLal Malhotra [1976 (1) SCC 834], Mahindra Engineering and Chemical Products Ltd. v. Union of India [1992 (1) SCC 727]; SaitRikhajiFurtarnal v. State of A.P. [1991 Supp (1) SCC 202]; and R. Dalmia v. C.I.T. [1977 (2) SCC 467]. 17. The expression "that is to say" is descriptive, enumerative and exhaustive and circumscribes to a great extent the scope of the entry. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain [2000 (5) S....
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.... (supra) it is fixed, specific and clear that only the description given in such entry shall be covered by serial no. 9. Consequently the goods of the appellant will fall under Serial No. 453 of Schedule III of the Notification 1/2017-IGST, therefore, the demand of differential custom duty shall not sustain. 6. As regard the submission of the learned Counsel on the demand being time barred, we find that there is no dispute that the physical assessment of bill of entry was made by the proper custom officer and the appellant have declared the goods correctly as per the documents and claimed the exemption of IGST rate in terms of Serial No. 23 and 453 of Schedule III of Notification 1/2017. Had the officer of the different view as raised in....