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TMI Blog2024 (9) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... argeable on domestic supply of goods and supply of services, though having adopted the Harmonized System of Nomenclature (HSN) code along with the rules for interpretation, is structured differently to suit legislative purpose and as differently from the schedule to Central Excise Tariff Act, 1985 for excisable goods. We are, therefore, called upon to decide if Customs Tariff Act, 1975 empowers the determination of 'rate of duty' of goods as set out in a legislative enactment that does not acknowledge officers of customs for such purpose. 2. The tax was leviable on the impugned goods under the authority of '(7) Any article which is imported into India shall, in addition, be liable to integrated tax at such rate, not exceeding forty per cent, as is leviable under section 5 of the Integrated Goods and Services Tax Act, 2017 on a like article on its supply in India, on the value of the imported article as determined under sub-section (8).' and, in like manner, of '(9) Any article which is imported into India shall, in addition, be liable to the Goods and Services Tax compensation cess at such rate, as is leviable under section 8 of the Goods and Services Tax (Compensation to Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the said tax had been discharged @ 5% as set out in Schedule I of notification no. 1/2017-Integrated Tax (Rate) dated 28th June 2017. This particular rate of duty was, according to the show cause notice, not applicable to the said import for non-conformity with 'other aircraft other than those for personal use' at serial no. 244 therein, being intended for use by employees and officials of M/s Tata Steel Ltd and the alternative description 'aircrafts for personal use' at serial no. 176 in Schedule IV at notification no. 1/2017-Integrated Tax (Rate) dated 28th June 2017 with corresponding rate of duty at 28% to be more apt description. Holding that the lower rate of duty was applicable only to aircraft meant for public transport, order [order-in-original no. CC-VA/23/2020-21 Adj.(I)ACC dated 05th November 2020] of Commissioner of Customs (Import), Air Cargo Complex (ACC), Mumbai subjected the goods to recovery of differential duty of Rs. 27,34,95,807/- under section 28 of Customs Act, 1962, along with applicable interest under section 28AA of Customs Act, 1962, besides confiscating goods valued at Rs. 1,02,45,55,582/- under section 111 of Customs Act, 1962 and, thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for each trip by the individual actually using it. This analogy of the show cause issuing authority needs to be deliberated in terms of legal provisions of IGST/CGST law as the importer has throughout maintained that the import of helicopters is meant for the purpose of their business. The moot question here is if, the imported goods are meant for business purpose of the importer, then there is no question of charging any sum on its employee for the use of the same in course of its day to day business. This fact that no consideration was charged has also been accepted by the employee of the importer Shri Amitava Roy as per his statement recorded by DRI.' was, he argued, erroneous inasmuch as '14.7 It is seen from the above definition that inter-alia a "company" has been defined as "person". Accordingly, it is a logical conclusion that if a company imports an aircraft for its own use then it will tantamount to 'personal use' as per the IGST law, It is, however obvious that being a non-natural person, a company itself cannot use an aircraft and the same would be used by staff of the said company in day to day work of the said company. On this basis I find that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver." It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. Ltd, [1955] 2 All ER 345, Lord Reid pointed out as to what is the meaning of "ambiguous' and held that "provision is not ambiguous merely because it contains a word which in different context is capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning." It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff and shall require an IEC, except as provided under para 2.07 of the HBoP 2015-20' to urge reference to appropriate interpretation in the absence of any definitional guidance in the impugned statute. 7. It is further argued by him that the Hon'ble High Court of Bombay, in Mahindra & Mahindra Ltd v. Union of India [2022-TIOL-1319-Hon'ble High Court -MUM-CUS], had held that delay in discharge of duty levied under authority of Customs Tariff Act, 1975 are not to be saddled with additional detriments envisaged in another law and, therefore, section 28AA of Customs Act, 1962 is clearly inapplicable. It was further contended that the show cause notice had not discharged the onus devolving on Revenue in the manner set out by Hon'ble Supreme Court in Hindustan Ferodo Ltd v. Collector of Central Excise [1997 (89) ELT 16 (SC)] that 'It is not in dispute before us as it cannot be, that onus of establishing that the said rings fell within Item No. 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tax law that is extra jurisdictional. However, the legal framework for re-classification is not beyond such appellate jurisdiction and we may subject the impugned order to that test. ' may be seen as offering backdrop for resolution of this dispute. 8. We note therein that the classification for the purpose of basic customs duty had not, as also in the present dispute, been altered either on assessment or at the stage of recovery of duties under section 28 of Customs Act, 1962. It may also be noted such re-classification solely for determining the 'integrated tax' rate under section 3(7) of Customs Tariff Act, 1975 does not appeal to logic or purpose. In the immediately preceding regime of 'additional duty of customs' charged under section 3(1) of Customs Tariff Act, 1975, wherein that burden was permitted to be neutralized through the CENVAT credit route on goods imported for use in the manufacture of goods that would be exigible to duties of central excise under Central Excise Act, 1944, levy on goods sold through trade channels accrued to the exchequer such determination for compliance with article 265 of the Constitution was inevitable; now all imports, save for the negligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructions. There is no indication anywhere that we should concur on the cause and effect put forth by Learned Special Counsel. It was also pointed out that other importers had cleared aircraft on payment of the higher rate of duty. To us, the assessment adopted by other importers does not appear to be a convincing reason to hold that the appellant herein should also be subjected to the same rate of duty. More so, and as pointed out supra, complete neutralization may well have influenced other importers to subject themselves to higher duties on balance of convenience. That the appellant here chose not to do so should not place them at disadvantage, 11. In re Ortho Clinical Diagnostics India Pvt Ltd, it was observed that '12. The scheme of rule 3(7) of Customs Tariff Act, 1975, therefore, imposes 'integrated tax' on imported goods, at a rate as prescribed under the authority of section 5 of Integrated Goods and Services Tax (IGST) Act, 2017, on value as prescribed in section 3(8) therein which is the arithmetical addition of duties of customs to value for assessment of imported goods and posing no discretionary authority therein. In the light of this being a distinct 'integrated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '29. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed by the assessee, the Department has to adduce proper evidence and discharge the burden of proof. In the present case the said burden has not been discharged at all by the Revenue. On the one hand, from the trade and market enquiries made by the Department, from the report of the Chemical Examiner, CRCL and from HSN, it is' quite clear that the goods are classifiable as "Denatured Salt" falling under Chapter Heading No. 25.01. The Department has not shown that the subject product is not bought or sold or is not known or is dealt with in the market as Denatured Salt. Department's own Chemical Examiner after examining the chemical composition has not said that it is not denatured salt. On the other hand, after examining the chemical composition has opined that the subject matter is to be treated as Sodium Chloride.' and further in Hindustan Ferodo Ltd v. Collector of Central Excise, Bombay [1997 (89) ELT 16 (SC)] that '3. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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