TMI Blog2018 (6) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... in any other heading of Chapter 92. The exemption vide Sl. No. 143 of the said Notification is now admissible only to those indigenous handmade musical instruments of Chapter 92 as are listed in Annexure-II of the said Notification - The said product do not correspond to the description ‘Getchu Vadyam or Jhallari’ mentioned at Sr. 4 or ‘Gethu or Jhallari’ mentioned at Sr. 43, or ‘Nagara–pair of Kettledrums’ mentioned at Sr. 113 of Annexure – II of N/N. 2/2017-Central Tax (Rate), dated 28-6-2017, as amended, as claimed by the applicant, or to any other items of said Annexure – II. As Page 4 of 5 the list of indigenous handmade musical instruments given in Annexure-II of N/N. 2/2017-Central Tax (Rate) is exhaustive and the wordings of Entry at Sl. No. 143 of said Notification are very clear, the benefit of Sl. No. 143 of Notification No. 2/2017-Central Tax (Rate), dated 28-6-2017 is not admissible to the product ‘Electrically operated Drum with Bell and Zalar’ manufactured and supplied by the applicant. Also, the Sl. No. 143 of Notification No. 2/2017-Central Tax (Rate), dated 28-6-2017, as amended, is not pari-materia to Entry 43 under the Gujarat VAT Act. Therefore, the Deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f provides musical instruments, parts and accessories of such articles. The Chapter 92 provides various kinds of musical instruments which are subject to tax under the GST Act. The Chapter 92 also provides the Indigenous handmade musical instrument subject to NIL rate of GST. They submitted that the entry of musical instrument under the VAT Act and as provided under Chapter 92 of the GST Act are identical and hence according to them the exemption granted under the VAT Act is continued even under the Goods and Service Tax Act, 2017. They requested that the disputed item known as electrically operated drum with bell and zalar be held as covered under Chapter 92 of the GST Tariff applicable at NIL rate of tax. 4. The applicant made further written submissions in support of their claim of classification of the item electrically operated drum with bell and zalar as an indigenous handmade musical instrument. They submitted that the Chapter 92 of GST Tariff provides for musical instruments, parts and accessories of such articles subject to tax @ 28%, which includes Central Tax @ 14% and State Tax @ 14%. However, the NIL rate of tax is applicable to indigenous handmade musical instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, the disputed item of the applicant is handmade musical instrument. 8. It is submitted by the applicant that the item electrically operated drum with bell and zalar is an indigenous handmade musical instrument covered under Chapter 92 subject to NIL rate of tax. They submitted that there is a principle for interpretation of schedule entry that under which entry the product is covered is to be determined by following the test of common parlance or commercial parlance and relied on the judgment of Hon ble Supreme Court in the case of M/s. Indo International Industries, reported at 45 STC Page 359. They submitted that the disputed item of the applicant is Page 2 of 5 popularly known as musical instrument and is also played in every Hindu Temple during performing morning and evening Aarti. Accordingly, as per common parlance principle, the disputed item is indigenous handmade musical instrument and hence the rate of tax applicable would be NIL rate of tax. They further relied on the following judgments (a) Atul Glass Industries (p) Ltd. 63 STC Page 322 (S.C.) (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, Hon ble Supreme Court in the case of L.M.L. Ltd. Vs. Commissioner of Customs [Civil Appeal No. 3764 of 2003, decided on 21.09.2010 reported at 2010 (258) ELT 321 (S.C.)] has held as follows :- 12. In Collector of Central Excise, Shillong v. Wood Crafts Products Ltd. reported in (1995) 3 SCC 454, it was held by this Court that as expressly stated in the statements of objects and reasons of the Central Excise Tariff Act, 1985, the Central Excise Tariffs are based on the Harmonious System of Nomenclature Page 3 of 5 (HSN) and the internationally accepted nomenclature was taken into account to reduce disputes on account of tariff classification. Accordingly, for resolving any dispute relating to tariff classification, a safe guide is the internationally accepted nomenclature emerging from the Harmonious System of Nomenclature (HSN). Although, the decision in the case of Woodcraft Products (supra) dealt with the interpretation of the provisions of the Central Excise Tariff there can be no doubt that the HSN Explanatory Notes are a dependable guide even while interpreting the Customs Tariff. 13.1 As per the submissions of the applicant, for manufacture of product Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the applicant, for manufacture of product Electrically operated Drum with Bell and Zalar , they prepare body by using Lathe Machine, Drill Machine and Welding Machine, wherein different parts are manually assembled. In the said product, Drum, Bell and Zalar are used which are played in a rhythm by using electricity and electric motor. The resultant product is distinctly known in the market as Electrically operated Drum with Bell and Zalar . We, therefore find that the said product do not correspond to the description Getchu Vadyam or Jhallari mentioned at Sr. 4 or Gethu or Jhallari mentioned at Sr. 43, or Nagara pair of Kettledrums mentioned at Sr. 113 of Annexure II of Notification No. 2/2017-Central Tax (Rate), dated 28-6-2017, as amended, as claimed by the applicant, or to any other items of said Annexure II. As Page 4 of 5 the list of indigenous handmade musical instruments given in Annexure-II of Notification No. 2/2017-Central Tax (Rate) is exhaustive and the wordings of Entry at Sl. No. 143 of said Notification are very clear, we hold that the benefit of Sl. No. 143 of Notification No. 2/2017-Central Tax (Rate), dated 28-6-2017 is not admissible to the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
