TMI Blog2021 (12) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... Jet Airways India Limited, against order-in-appeal no. MUM-CUSTM-AMP-APP-910 to 949/18-19 dated 28th December 2018 of Commissioner of Customs (Appeals), Mumbai III, has its genesis in the re-import of parts/engines of aircraft sent outside the country for repair and the controversy pertaining to the extent to which the exemption, accorded by notification no. 45/2017-Cus dated 30th June 2017 and no. 46/2017-Cus dated 30th June 2017, applies to the duty liability otherwise payable on assessment. Specifically, it is the coverage of Integrated Goods Service Tax (IGST) levied under section 3 (7) of Customs Tariff Act, 1975 within the exemption that lies at the core of the cavil of the appellant. 2. The re-imports had been effected against 34 bills of entry filed between 18th August 2017 and 9th August 2018 on which, and despite their claim for exemption, they had been assessed to duty of ₹56,39,37,439 as leviable under the above provision and which had been discharged under protest before seeking appellate remedy, and unsuccessfully, leading to the impugning of the order before us. It is the deployment of hereby exempts the goods falling within any Chapter of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 54100 and 54102 to 54130 of 2018 against order-in-appeal no. CC (A) CUS/de-I/ACC/Import/NCH CH/358-420/2018 dated 12th September 2018 of Commissioner of Customs (Appeals), New Customs House, Delhi]. It was also contended by him that notification no. 36/2021-Customs dated 19 th July 2021 and no. 37/2021-Customs dated 19th July 2021 substituting Said duty, tax or cess for Duty of customs in column (3) of the Table referred to supra and the insertion of (d) on recommendation of the GST Council, for removal of doubt, it was clarified that the goods mentioned that serial numbers 2 and 3 of the Table, are leviable to integrated tax and cess as leviable under the said Customs Tariff Act, besides the customs duty as specified in the said First Schedule, calculated on the value as specified in column (3), and the exemption, under said serial numbers, is only from the amount of said tax, cess and duty over and above the amount so calculated. in notification no. 45/2017-Cus dated 30th June 2017 and no. 46/2017-Cus dated 30th June 2017 is of questionable jurisdiction as retrospectivity of clarification, under section 25 of Customs Act, 1962, is restricted to one year from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tifications issued thereunder, should be understood in the same sense. It is for this reason that it has been contended by learned Counsel for the Appellant that the expression duty of customs appearing at serial no. 2 of the Exemption Notification can have only that meaning which is assigned to it under section 2(15) of the Customs Act, which would be the duty leviable under the Customs Act and any other duty or tax which is not levied under the Customs Act, but levied under other enactments cannot be treated as a duty of customs for the purpose of customs notification. 21. It is also relevant to refer to the judgment of the Supreme Court in Collector of Customs, Madras vs. Indian Organic Chemicals Limited [2000 (118) ELT 3 (S.C)]. Section 19 of the Customs Act relates to determination of duty where goods consist of articles liable to different rates of duty. Section 3 of the Tariff Act deals with levy of additional duty equal to excise duty. The Supreme Court held that since section 19 of the Customs Act applies to determination of duty , it would only relate to duty under the Customs Act as is clear from section 2 (15) of the Customs Act and not the additional dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Education Cess are in the nature of additional excise duty and when an exemption notification exempts duty of excise it would not automatically mean that these additional excise duties are also exempted. Thus, it was held that these additional duties do not come within the scope of the term duty of excise . xxxxx 26. It is, therefore, clear that though integrated tax is levied under section 5 of the Integrated Tax Act, but it is collected in accordance with the provisions of section 3 of the Tariff Act on the value as determined under the Tariff Act and at the point when duties of customs are levied under section 12 of the Customs Act. Thus, integrated tax is levied under section 5(1) of the Integrated Tax Act and only the procedure for collection has been provided under section 3 of the Tariff Act. to distinguish the intent of the exemption in the said notification along with the finding that 27. It also needs to be noted that the term integrated tax has not been defined either under the Customs Act or the Customs Tariff Act or under the Exemption Notification. As integrated tax is not levied under section 12 of the Customs Act, it cannot be called dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciate this, it would be necessary to examine whether it was at all necessary to add leviable thereon which is specified in the said First Schedule after duty of customs in the main body of the Exemption Notification. As noticed above, even if leviable thereon which is specified in the said First Schedule after duty of customs in the main body of the Exemption Notification, had not been added, it would have necessarily meant duty of customs that is defined under section 2(15) of the Customs Act read with section 12 of the Customs Act and section 2 of the Tariff Act. This in turn, would relate to the First Schedule of the Tariff Act. It, therefore, follows that it is only as a matter of abundant caution and only to make the intention clear beyond any doubt that the main body of the Exemption Notification includes duty of customs specified in the First Schedule. Thus, no significance can be attached to the fact that specified in the First Schedule has not been mentioned after Duty of customs in the conditions set out at column no. (3) in the Table for serial number 2 of the Exemption Notification. 34. This precise issue was considered by the Supreme Court in Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a matter of drafting, the Central Government has in some notifications specifically referred to the excise duty in respect of which exemption is granted as `duty of excise leviable under the Central Excises and Salt Act, 1944, it does not follow that in the absence of such words of specificity, the expression `duty of excise standing by itself must be read as referring to all duties of excise. It is not uncommon to find out that the legislature sometimes, with a view to making its intention clear beyond doubt, uses language ex abundanti cautela though it may not be strictly necessary and even without it the same intention can be spelt out as a matter of judicial construction and this would be more so in case of subordinate legislation by Executive. The officer drafting a particular piece of subordinate legislation in the Executive Department may employ words with a view to leaving no scope for possible doubt as to its intention or sometimes even for greater completeness, though these words may not add anything to the meaning and scope of the subordinate legislation . Here, in the present notifications, the words `duty of excise leviable under the Central Excises and Salt Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation 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. 45. It would, therefore, not be necessary to examine the contention of learned Authorised Representatives of the Department that in case of any ambiguity in an Exemption Notification, the benefit should go to the Revenue. It would also not be necessary to examine the remaining contentions advanced by the learned Counsel for the Appellant that the activity of repairs is supply of service or that the activity would not fall under the category of import of service under the Integrated Tax Act since the necessary ingredients mentioned therein have not been fulfilled. in Jet Airways (India) Ltd v. Commissioner of Customs, Air Cargo Commissionerate, New Delhi [final order no. 50004 50063/2021 dated 13th June 2021], respectfully following the decision on the eligibility for exemption from levy of Integrated Goods Service Tax (IGST) in accordance with the notifications, we set aside the impugned order and allow the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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