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TMI Blog2023 (8) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... es within 'goods and services tax (GST)', is legacy driven and was legislated thereupon in lieu of 'additional duty of customs' - corresponding to levy on manufacture of such goods in India - empowered to be collected under section 3(1) of Customs Act, 1962. The procedure on import of goods prescribed in section 46 of Customs Act, 1962, requiring declaration of tariff item, in addition to declaration of tariff item in First Schedule to Customs Tariff Act, 1975 for assessment to 'basic customs duty', corresponding to appropriate description in Schedule to Central Excise Tariff Act, 1985, remained unaltered. However, there is substantial variation in the legislative articulation that may not be out of place to set forth here. 3. Additional duty was leviable, prior to 1st July 2017, under the authority of '(1) Any article which is imported into India shall, in addition, be liable to a duty (hereinafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m liability of Rs. 51,53,961 under section 28 of Customs Act, 1962, along with interest as applicable under section 28AA of Customs Act, 1962, which is in appeal before us. 6. For the purposes of 'basic customs duty', heading 8413 corresponds to 'pumps for liquids, whether or not fitted with a measuring device; liquid elevators' and comprising 'pumps fitted or designed to be fitted with a measuring device:' at sub-heading 8413 11 and 8413 19, 'hand pumps, other than those of sub-heading 8413 11 or 8413 19' at sub-heading 8413 20 (doubling as tariff item 8413 20 00), 'fuel lubricating or cooling medium pumps for internal combustion piston engines:' at sub-heading 8413 30, 'other reciprocating positive displacement pumps:' at sub-heading 8413 50, 'other rotary positive displacement pumps:' at sub-heading 8413 60, 'other centrifugal pumps' at sub-heading 8413 70 and 'other pumps - liquid elevators' at subheading 8413 81 and 8413 82 (doubling as tariff item for 'liquid elevators') in addition to 'parts' at sub-heading 8413 91 of First Schedule to Customs Tariff Act, 1975. 7. The appellant was placed on notice of recovery under section 28 of Customs Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on classification was non-existent owing the alignment of the relevant schedules in content and design. No 'proper officer' worth his salt would have considered separate tariff items under the respective schedules for any imported goods. But it appears that, not by the content but with the presentation, there is some template discordance in the tariff of Goods and Service Tax (GST) offering traction for disputes such as this. 10. It is in the light of this incompatibility that Mr Lakshmikumaran submitted that the notifications impugned in this order constitutes the tariff comprising of schedules that are mutually exclusive and incorporating a residuary entry for the 'almost' highest rate of duty which is where the adjudicating authority chose to place the impugned goods to their detriment. We may also be permitted the luxury of indulging in speculation that the contrarian, and even antipodal, perspective on classification has ceased to be of consequence in the altered paradigm of tax. Before the introduction of goods and service tax (GST), the 'special additional duty' was being refunded to merchant-importers upon undertaking sale of such goods and 'additional duty' paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... departure from '5. (1) Subject to the provisions of sub-section (2), there shall be levied a tax called the integrated goods and services tax on all inter-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 of the Central Goods and Services Tax Act and at such rates, not exceeding forty per cent., as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person:' of Integrated Goods and Services Tax (GST) Act, 2017, indicates that section 3(7) of Customs Tariff Act, 1975 needs to carefully examined for its scope. Doubtlessly, it charges a liability on the goods under import but circumscribed by section 5 of Integrated Goods and Services Act, 2017 which, ordinarily, applies to 'inter state supply' for levy at a notified rate on value determined in accordance with section 15 of Central Goods and Services Tax (CGST) Act, 2017. Supply of goods from outside India, envisaged to be at par with 'inter state supply' of goods, is treated differently under the authority of the proviso to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been able to demonstrate so. 13. The rate of duty for levy of 'integrated tax' is prescribed under the authority of section 5 of Integrated Goods and Services Tax (IGST) Act, 2017. Our appellate jurisdiction is limited, as far as 'rate of duty' is concerned, to those prescribed in Customs Tariff Act, 1975, Central Excise Tariff Act, 1985 or in Finance Act, 1994. This appellate jurisdiction originates with exercise of adjudicatory authority under Customs Act, 1962, Central Excise Act, 1944 and Finance Act, 1944 thereby binding the original, and first appellate, authorities therein to such jurisdictional circumscribing. 'Central tax officers' appointed under Central Goods and Services Tax (CGST) Act, 2017 are subject to a different appellate structure. We would consider it inappropriate for us to venture into the exercise of classification under a law that is beyond our jurisdiction and the adjudicating authority should also have been similarly cautious. The arguments of Learned Senior Counsel and of Learned Authorized Representative on the merit of their respective stands on the classification of the impugned goods are, thus, deliberately not being taken up for decision on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the First Schedule to Customs Tariff Act, 1975, is the significance of the very resort that Revenue seeks shelter within. From the scheme of the 'integrated tax' rate notification, it appears that the rates enumerated therein are to be read as corresponding to the tariff items in the First Schedule to Customs Tariff Act, 1975 and with the default rate or residuary rate of 18% to be read as corresponding to any tariff item lacking in such rates. This follows from the mandate of Article 269A of the Constitution and the provisions of section 5 of Central Goods and Services Tax (CGST) Act, 2017 that eliminates any scope for perceiving the rates as an exemption notification - which the adjudicating authority appears to have adopted as the guiding prism. 16. It is not the case of Revenue that any or all of the impugned goods do not find fitment in heading 3822 of the First Schedule to Customs Tariff Act, 1975 or that the 'integrated tax' rate at serial no. 80 of Schedule II is, by the corresponding description, unquestionably excluded from every tariff item comprising heading 3822 of the First Schedule to Customs Tariff Act, 1975. Nor is it the case of Revenue that the 'kits' at ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision can be approved. 18. The exercise in classification undertaken in adjudicating the proposal to take recourse to an alternate entry should have adhered to the judicially established rules of engagement. Instead of deliberating on the validity, and appropriateness, of a tariff item in the First Schedule to Customs Tariff Act, 1975 other than that claimed in the bills of entry after due notice to the importer, the adjudicating authority adopted a process of elimination of the enumeration of descriptions in the Schedules to the 'integrated tax' rate notification, and ignoring the scheme of its presentation, with the erroneous assumption of jurisdiction to place goods within the ambit of the residuary entry in Schedule III of the 'integrated tax' rate notification. 19. We, therefore, hold that, insofar as the imported goods are concerned in the light of statutory circumscribing of levy of 'integrated tax' as discussed supra and there being no prejudice to interests of revenue thereby, the declared classification of the imported goods prevails. Legislative intent is not imposition of burden of 'integrated tax' on the person importing goods and the onus for altering classi ..... 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