TaxTMI 
TaxTMI 
2024 (11) TMI 1534
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....E DILIP GUPTA: Customs Appeal No. 86406 of 2024 and connected forty one Customs Appeal have been filed by Lifelong Online Retail Pvt. Ltd. [the appellant] to assail the order dated 23.02.2024 passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Mumbai-II [the Commissioner (Appeals)]. The Commissioner (Appeals) has declined to interfere with the assessment orders in respect of forty two Bills of Entry. 2. It needs to be noted that the Additional Commissioner of Customs in respect of one Bill of Entry No. 9446523 dated 07.07.2022 passed a speaking order under section 17(5) of the Customs Act, 1962 [the Customs Act] re-assessing the Bill of Entry after declining to grant the benefit of concessional rate of customs duty under the notification no. 50/2017Cus dated 30.06.2017 [the notification]. The Additional Commissioner of Customs also confiscated the goods under section 111(o) of the Customs Act but since the goods were not prohibited, gave an option to the importer to redeem the same under section 125(1) of the Customs Act on payment of redemption fine of Rs. 1 lakh. The Additional Commissioner of Customs also imposed a penalty of Rs. 27,000/- on the importer un....
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.... matter to the Additional Commissioner of Customs for passing a speaking order as the view of the Additional Commissioner of Customs was already known from the speaking order dated 10.03.2023 passed in respect of Bill of Entry No. 9446523 dated 07.07.2022. 11. All these forty two appeals have been filed to assail the orders passed by the Commissioner (Appeals) in respect of these forty two appeals. 12. Shri T. Vishwanthan, learned counsel for the appellant assisted by Shri Akhilesh Kangsia, Ms. Madhura Khandekar and Shri Siddharth Sen, submitted that there is no dispute regarding the classification of the imported goods under CTI 9019 10 20 and the only dispute is as to whether the importer would be entitled to concessional rate of customs duty under the notification. Learned counsel pointed out that the appellant would be entitled to avail the concessional rate of customs duty under the notification. In this connection, learned counsel also placed reliance upon Serial No. 563 of the notification to contend that the appellant would only have to pay customs duty @ 5% instead of 10% since the description of goods does not provide that the goods are required only for medical use....
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....ion of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 12/2012-Customs, dated the 17th March, 2012 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 185 (E) dated the 17th March, 2012, except as respects things done or omitted to be done before such supersession, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading, subheading or tariff item of the First Schedule to the said Customs Tariff Act, as are specified in the corresponding entry in column (2) of the said Table, when imported into India,- (a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the standard rate specified in the corresponding entry in column (4) of the said Table; and (b) from so much of integrated tax leviable thereon under sub-section (7) of sect....
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....cise, Madras [1988 (35) E.L.T. 535 (Tribunal)]; and Aravali Ispat Ltd. vs. Collector of Central Excise, Jaipur [1986 (26) E.L.T. 259 (Tribunal)]. 20. The contention of the learned authorized representative appearing for the department is that the appellant would be entitled to concessional rate of customs duty only if the massagers imported by the appellant are meant for medical use. 21. What weighed with the Additional Commissioner of Customs while examining the alternative submission advanced on behalf of the appellant in the speaking order dated 10.03.2023 passed in respect of one Bill of Entry No. 9446523 dated 07.07.2022 is that the word "only" or "exclusively" or "wholly" or "entirely" is not used before the words "for medical use". The relevant portion of the order is reproduced below: "13. The importer has, in their written submission dated 07.12.2022, submitted that: (a) The entry does not cast any restriction on usage other than medical use of the goods sought to be exempted therein. If the intention of the legislature was to extend the exemption only to the goods capable of medical use and no other use, the scope would have been qualified by usage....
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.... description of goods in the notification does not use the word "only" or "exclusively" or "wholly" or "entirely" before "for medical use", the appellant cannot be denied the benefit of the concessional rate of customs duty under the notification, it will be appropriate to refer to decisions of the Supreme Court and the Tribunal on this issue. 25. In Tata Iron and Steel, the notification of which benefit was claimed granted exemption to duty paid pig iron but duty paid pig iron was also mixed with other non duty paid materials. It is in this context that the Supreme Court held that if the intention of the government was to exclude exemption to duty paid pig iron when mixed with other materials, then the notification would have used the expression, "only" or "exclusively" or "entirely" in regard to duty paid pig iron but these expressions were not used. Thus, the benefit of the exemption could not have been denied. The relevant portions of the judgment of the Supreme Court are reproduced below: "9. The respondent based the claim for exemption on Notification No. 30/60, dated 1st March, 1960 issued by the Central Government in terms of Rule 8(1) of the Central Excise Rule....
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....the High Court. The High Court quashed the orders of the Revenue Authorities. The High Court held that the Revenue Authorities fell into the error of interpreting Notification No. 30/60 by confining exemption to steel ingots in which "entirely, exclusively or only" duty paid pig iron is used. The High Court held that the words "entirely, exclusively or only" were not used in the notification. The notification exempted steel ingot in which duty-paid pig iron was used. The High Court also held that the notification would have to be interpreted in a manner that the statute would not cast a burden twice over for payment of tax on the tax payer unless the language of this statute is so compellingly certain to that effect. ***** 23. The High Court rightly held that the contention of the Revenue fails on two broad grounds. First, there cannot be double taxation on the same article. Counsel for the Revenue gave the example of excise duty on motor car, in spite of the fact that there was duty on tyres and duty on metal sheets. The analogy is misplaced. In such cases the duty is on the end product of motor cars as a whole. The duty on tyres and the duty on metal sheets do n....
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....(supra) and Union of India & Others v. Tata Iron & Steel Co. Ltd. (supra) was essentially based on the principle that where the raw material included dutypaid goods, the final product should not be required to pay duty again in respect of the duty-paid raw material content. But the fact remains that in the course of expression of its views, the Supreme Court had the occasion categorically to opine as to how notifications of the nature as before us should be interpreted and what is the meaning of the word "manufactured out of". It has been said unequivocally that unless the relevant notification specifically provides for it, it is not correct to read such notifications as confining the exemptions to products made "entirely", "exclusively" or "only" from the specified material and that proportionate relief should be given even in those cases where material other than that specified is used. ***** 14. In this connection we may note that in 1980 when Notification No. 44/80-C.E., dated 24-4-1980 was issued it read that in order to claim benefit of exemption under the notification the fibres and tops should have been manufactured exclusively out of wastes. Therefore, th....
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.... at length by a Division Bench of this Tribunal in RPG Industrial and it was held: "32. It would, therefore, be more than apparent that the intention in the two Notifications could not have been to restrict the scope of the said Notifications to goods manufactured 'only' or 'exclusively' out of plastic scrap or plastic waste, when such words are not specified in the Notifications." 31. Learned authorized representative appearing for the department also placed reliance upon the judgments of the Supreme Court in Commissioner of Customs (import), Mumbai vs. Dilip Kumar and Company and others [2018 (361) E.L.T. 577 (S.C.)] and on State of Gujarat vs. Arcelor Mittal Nippon Steel India [(2022) 6 SCC 459] to contend that grant of benefit of concessional rate of customs duty under the notification has to be strictly construed and when the text of the notification is plain and clear, no words can be added or deleted. 32. These two decisions of the Supreme Court in Dilip Kumar and Arcelor Mittal would not come to the aid of the department for the reason that words should not be added to the notification and the department would be justified in its belief only if the expression....