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TMI Blog2024 (3) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... nly) in respect of goods detailed in Annexure-A to the impugned Show Cause Notice, under Section 28(4) of the Customs Act, 1962. (iv) I order to charge and recover interest from M/s. Bright Commodities, 203, Om Corner, Plot No.- 336, 337 342, Ward 12B, Gandhidham, Gujarat 370201, on the confirmed IGST amount at Sl. No. (iii) above, under Section 28AA of the Customs Act, 1962 (v) I impose penalty of Rs. 1,18,71,347/- (One Crore Eighteen Lakh Seventy One Thousand Three Hundred Forty Seven only) plus amount of applicable interest upon the M/s. Bright Commodities, 203, Om Corner, Plot No. 336, 337 342, Ward 12B, Gandhidham, Gujarat 370201 under Section 114A of the Customs Act, 1962. However, I give an option to them to pay 25% of the amount of total penalty imposed at (v) above, subject to payment of total amount of duty and interest confirmed at (iii) and (iv) above, and the amount of 25% of penalty imposed, within 30 days of receipt of this order, as provided under first proviso to Section 114A of the Customs Act, 1962." From the above order, the issue for consideration by us arises that whether the appellant's goods i.e. Nutrition/Dietary Supplements classified under Tariff ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017- Integrated Tax (Rate) dated 28.06.2017. The case of the department is that the said goods are covered under Serial No. 9 of Schedule IV of the said notification which provided for IGST at the rate of 28%. For ease of reference both the entries are reproduced below:- 1.3 The Sl. No. 453 and 23 of Schedule III of the subject Notification No. 01/2017-Integrated Tax (Rate) dated 28.06.2017 are reproduced: S.No. Chepter/Heading/ Subheading/ Tariff Item Description of Goods 453 Any Chapter Goods which are not specified in schedule I, II , IV,V or VI 23 21069099 All Kind of food mixes including instant food mixes, soft drink concentrates, Sharbat, Betelnut product known as "Supari", Sterilized or pasteurized millstone, ready to eat packaged food and milk containing edible nuts with sugar or other ingredients, Diabetic foods: (other than Namkeens, bhjia, mixture, chabena and similar edible preparations in ready for consumption from) 1.4 At the relevant time, the goods classifiable under Tariff Item 21069099 were liable to four type of IGST rates i.e. 5%, 12%, 18% and 28% under Notification No. 1/2017-Integrated Tax (Rate) dated 28.06.2017, details of which are as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cover the goods of the present case. Therefore, the appellant's goods does not fall under Serial No. 9. Accordingly, the Serial No. 453 and/or 23 of Schedule III is the correct entry where the appellant's goods fall. Hence, the correct rate of IGST applied by the appellant i.e. 18% is correct and legal. 4.2 The identical issue has been considered by this Tribunal in the case of Neuvera Wellness Pvt. Ltd vide final order No. 12343/2023 dated 20.10.2023 wherein the following similar issue was involved: "The following issues arise for consideration in the present appeal: a) Whether Nutritional Supplements imported by the Appellant, which are preparations of substances such as Creatine, Nitrates, Glutamine and Amino Acids and which are admittedly classifiable under CTSH2106 9099, are liable to IGST at 28% under Sr.No.9 of Schedule IV of Notification No.1/2017-IGST-Rate or at 18% under Sr. No.453 of Schedule III of the said Notification, b) Whether the demand for alleged differential IGST is without jurisdiction and barred by limitation." On the above issues, involving the similar entries the Tribunal has passed the following order:- 4. We have carefully considered the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and maltodextrine syrup, Compound preparations for making non-alcoholic beverages, Food flavouring material, Churna for pan, Custard Powder 5. The department seeks to apply serial No. 9 of the aforesaid Notification.From the entry of Serial No. 9 there are certain specific items which are covered in the description of goods under Serial No. 9 wherein the impugned goods of the appellant are not appearing, therefore, in our view, the appellant's imported goods do not fall under Serial no. 9. We find that the lower authorities have contended that the food preparation not elsewhere specified and included suffixed with 'i.e.' means all the products of theheading 2106 shall fall under this description 'food preparation not elsewhere specified and included' is suffixed with i.e. and with specified items which means that only the items which are described after the words 'i.e.'are only covered under this entry and no any other product. Admittedly, the appellant's product are not covered under any of the goods described in serial No. 9, therefore serial No. 9 is not applicable in the appellant's case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4], Mahindra Engineering and Chemical Products Ltd. v. Union of India [1992 (1) SCC 727]; SaitRikhajiFurtarnal v. State of A.P. [1991 Supp (1) SCC 202]; and R. Dalmia v. C.I.T. [1977 (2) SCC 467]. 17. The expression "that is to say" is descriptive, enumerative and exhaustive and circumscribes to a great extent the scope of the entry. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain [2000 (5) SCC 511]." 18. The expression "that is to say" in sub-heading 2710.60 has to be interpreted to be words of limitation. The fact that sub-heading 2710.60 contains an exclusion clause goes to show that there may be other lubricating oils which may fall in the residuary heading "others". 19. The sub-heading 2710.60 significantly uses two expressions. They are (i) "that is to say" and (ii) "excluding". The first expression is used in description, enumerative and exhaustive sense and to a great extent circumscribes the scope of the entry. But the second expression dilutes the pervasiveness by carving out an exception for the purpose of the particular sub-heading a particular type of lubricating oil. All other types of lubricating oil are covered by the residuary entry i. ..... 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