AI Drafter 
TaxTMI 
TaxTMI 
2025 (2) TMI 320
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....sp;51842/2022, 51862/2022, 51882/2022, 51902/2022, 51922/2022, 51803/2022, 51823/2022, 51843/2022, 51863/2022, 51883/2022, 51903/2022, 51923/2022, 51804/2022, 51824/2022, 51844/2022, 51864/2022, 51884/2022, 51904/2022, 51924/2022, 51805/2022, 51825/2022, 51845/2022, 51865/2022, 51885/2022, 51905/2022, 51925/2022, 51806/2022, 51826/2022, 51846/2022, 51866/2022, 51886/2022, 51906/2022, 51926/2022, 51807/2022, 51827/2022, 51847/2022, 51867/2022, 51887/2022, 51907/2022, 51927/2022, 51808/2022, 51828/2022, 51848/2022, 51868/2022, 51888/2022, 51908/2022, 51928/2022, 51809/2022, 51829/2022, 51849/2022, 51869/2022, 51889/2022, 51909/2022, 52221/2022, 51810/2022, 51830/2022, 51850/2022, 51870/2022, 51890/2022, 51910/2022, 51811/2022, 51831/2022, 51851/2022, 51871/2022, 51891/2022, 51911/2022, 51812/202....
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....lied) 3. A Division Bench of this Tribunal in InterGlobe Aviation Ltd. vs. Commissioner of Customs, New Delhi [2020 (43) G.S.T.L. 410 (Tri. - Del.)] after referring to sections 2(15), 12(1) of the Customs Act and sub-sections (1), (7) and (9) of section 3 of the Customs Tariff Act, 1975 [The Tariff Act] and to the judgments of the Supreme Court in Prestige Engineering (India) Limited vs. Collector of C., Excise, Meerut [1994 (73) E.L.T. 497 (S.C.)] Collector of Customs, Madras vs. Indian Organic Chemicals Limited [2000 (118) E.L.T. 3 (S.C.)] and M/s. Unicorn Industries vs. Union of India and others [2019 (370) E.L.T. 3 (S.C.)] and the judgment of the Bombay High Court in Ceat Tyres of India Limited vs. Union of India [1992 (57) E.L.T. 221 (Bom.)] observed: (i) Though the expression duty of customs has not been defined under the Exemption Notification but it can only have that meaning which has been assigned to the meaning of 'duty' under section 2(15) of the Customs Act. It would, therefore, mean the 'duty of customs' leviable under the Customs Act and any other duty not levied under the Customs Act, would not be duty of customs for the purposes of any Notification issu....
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....d tax and compensation cess have been used in the main body of the same Exemption Notification. ***** 48. The inevitable conclusion that follows from the aforesaid discussion is that the absence of mention of integrated tax and compensation cess in column (3) under serial no. 2 of the Exemption Notification would mean that only the basic customs duty on the fair cost of repair charges, freight and insurance charges are payable and integrated tax and compensation cess are wholly exempted." (emphasis supplied) 6. The appeals were allowed by the Tribunal by a decision dated 02.11.2020 and the operative part of the order is reproduced below: "50. Thus, for all the reasons stated above, it is not possible to sustain the impugned orders upholding the assessments made on the 346 Bills of Entry. The 346 orders passed by the Commissioner (Appeals) are, accordingly, set aside and it is held that the Appellant is entitled to exemption from payment of integrated tax under the Exemption Notification on re-import of repaired parts/ aircrafts into India. All the 346 Appeals are, therefore, allowed." (emphasis supplied) 7. The aforesaid decision of the ....
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....obe Aviation and that the GST Council recommended that a suitable clarification, including any clarifictory amendment, if required, may be issued for removal of any doubt to clarify the decision of the GST Council that re-import of goods sent abroad for repairs attracts integrated tax and cess. The Circular provides that the clarifictory amendment was being issued to give effect to the recommendations made by the GST Council. It would be appropriate to reproduce the said Circular dated 19.07.2021 and it is as follows: "Circular No. 16/2021-Customs ***** Government of India Ministry of Finance Department of Revenue (Central Board of Indirect Taxes & Customs) ***** New Delhi, dated 19th July, 2021 ***** Subject: Clarification regarding applicability of IGST on repair cost, insurance and freight, on goods re-imported after being exported for repairs, on the recommendations of the GST Council made in its 43rd meeting - reg. References have been received seeking clarification on the issues of the applicability of IGST on repair cost, insurance and freight, on goods re-imported after ....
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....T on such imports, on the cost of repairs, insurance and freight charges, was affirmed. In fact, this was never disputed in first place and the request was to allow credit of the IGST so paid. Similarly, while examining the question of GST rate on maintenance, repair and overhauling (MRO) services in respect of aircraft, aircraft engines and other components and parts, the leviability of IGST on such re-imports was again affirmed by the GST Council in its 39th meeting, making it explicitly clear that such goods reimported after repair from outside India attract IGST on the repair, freight and insurance value. In the said discussion, the IGST levied on such goods re-imported after being exported abroad for repairs was a significant factor considered by the GST Council while deciding the rate on MRO services. The above deliberations of the GST Council leave no doubt that the Council had consciously recommended for levy of IGST and cess, albeit at the repair, insurance and freight cost instead of the entire value of goods imports, on the basis of which the said notifications No. 45/2017-Cus and 46/2017Cus were issued. 6. Recently, in the matter of M/s Interglobe Aviatio....
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.... the CBIC and observed that a conjoint reading of the two would make it clear that Explanatory Note 'd' is clarificatory in nature and hence would have retrospective effect. 11. Ms. Nupur Maheshwari, learned counsel for the appellant made the following submissions: (i) The issue as to whether the phrase 'duty of customs' as mentioned under serial no. 2 of the Exemption Notification includes integrated tax has been settled by the Tribunal in the decision rendered on 02.11.2020 in InterGlobe Aviation and subsequent decisions in Interglobe Aviation Ltd. vs. Commissioner of Customs; Spice Jet Limited vs. Commissioner of Customs (General), New Delhi [2021 (1) TMI 663 - CESTAT New Delhi] ; Jet Airways India Ltd. vs. Commissioner of Customs (Import), Mumbai [2021 (2) TMI 1113 - CESTAT Mumbai] ; M/s. Jet Airways (India) Ltd. vs. Commissioner of Customs (Air Cargo) [2021 (9) TMI 1134 - CESTAT Chennai]; and Jet Airways (India) Ltd. vs. Commissioner of Customs [2021 (1) TMI 577 - CESTAT New Delhi]; (ii) The amendments made in Exemption Notification dated 30.06.2017 by the Amendment Notification dated 19.07.2021 are substanti....
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..... Commissioner of Income Tax and another [2005 (11) TMI 25-SC] ; and (vii) While interpreting an Exemption Notification, what is relevant is the text and the language employed in the Notification and not the intention of the Government or the authority issuing the Exemption Notification. In this connection reliance has been placed on the Constitution Bench judgment of the Supreme Court in Hemraj Gordhandas vs. H.H. Dave Assistant Collector of Central Excise & Customs [1978 (2) E.L.T. J 350 (S.C.)] . 12. Shri S.K. Rahman, learned authorized representative appearing for the department, however, supported the impugned order and made the following submissions: (i) The Exemption Notification dated 30.06.2017 refers to 'duty of customs' and not 'duty of customs leviable under the First Schedule' and, therefore, 'duty of customs' would include basic customs duty and integrated tax; (ii) Integrated tax is not a duty of customs levible under the Customs Act, but is levied on import of goods under the Tariff Act; (iii) In clause (ii) of the Amendment Notification, it has been provided that the words 'duty of customs' shall be substituted by 'Said duty, ....
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..... The main body of the Exemption Notification 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, but column (3) of the Table accompanying the main Notification against serial number 2 refers to only 'duty of customs' on the fair cost of repairs carried out with insurance and freight charges. 15. It is for this reason that the Division Bench of the Tribunal in InterGlobe Aviation held that the expression duty of customs occurring in the column (3) of the Table at serial number (2) of the Exemption Notification would only mean the duty of customs leviable under the Customs Act as have been specified in the First and Second Schedules to the Tariff Act and not to integrated tax, which is levied under section 5 of the Integrated Tax Act. 16. The aforesaid decision of the Tribunal in InterGlobe Aviation resulted in the issuance of the Amendment Notification dated 19.07.2021 by the Central Government. This Amendment Notification specifically mentions that it was being issued under section 25(1) of the Customs Act. As noticed above, two amendments were made; the first amendm....
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....ds 'it is clarified' and 'for removal of doubt'. 35. A clarificatory provision generally seeks to supply an obvious omission or to clear doubts on the meaning of the language used in the previous provisions. It makes explicit or clears the meaning of a provision contained in the Act, which meaning was already implicit. The Courts have repeatedly held that in such a situation it is necessary to first consider the meaning of the provision to which Explanation is added without such Explanation, and then compare the same with the meaning given by the added Explanation. If the result is same, then alone the Explanation can be considered to be clarificatory in nature and given a retrospective effect from the inception of the original provision. The provision sought to added cannot be presumed to be clarificatory merely because the provision attached to Notification bears the nomenclature such as 'it is clarified' or 'for the removal of doubts'. It has to be determined, in each case, whether the provision is clarificatory, basis the test laid down by the Courts. 36. In the present case, the Exemption Notification, before its amendment on 19.07.2019,....