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TMI Blog2024 (10) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... ded). However, vide letter dated 18.05.2018 the appellant had requested the Department for re-assessment of those 18 Bills of Entry. As the appellant self-evaluated and is appraised that they had not fulfilled the pre-import condition as the goods imported under Advance Authorizations were required to be imported first and thereafter the manufactured goods were to be exported which was mentioned in the said letter that inputs used for production of their export product i.e. colour masterbatches, does not fall under the list of inputs given in the Appendix of the aforesaid Notification. The benefit of Notification has been taken due to ambiguity about the said Notification. 3. Based on the said request the bill of entries were re-assessed. The appellant had paid the amount of IGST and has also availed the input tax credit. The payment was made alongwith the payment of interest amounting to Rs.7,95,166/- since the appellant had committed the mistake of wrongly availing benefit of IGST exemption for import under mistake of wrongly interpreting the definition of pre-import condition, that the amount of interest of Rs.7,95,166/- was claimed to be refunded vide refund claim dated 26.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .-HC) the order under challenge is prayed to be set aside and the appeal is prayed to be allowed. 9. Ld. D.R. while rebutting these submissions has mentioned that the appellants had already claimed the exemption of IGST with respect to the impugned import vide 18 number of Bills of Entry in terms of Notification No.18/2015 dated 01.04.2015. The said Notification got amended vide Notification No.79/2017 dated 13.10.2017 incorporating condition No.xii according to which the exemption of IGST was subjected to "pre-import condition". Though said condition No.xii was later omitted vide the subsequent Notification No.01/2019 dated 10.01.2019. However, for the impugned period from 13.10.2017 to 10.01.2019 (the period of 18 Bill of Entries) the pre-import condition was applicable. The appellants thus had wrongly claimed the IGST exemption. 10. They had self-realized their mistake and vide their letter dated 18.05.2018 had requested re-assessment of their Bill of Entries. Subsequent thereto the IGST on the imports made by the appellant was paid. Since the payment was delayed payment and the IGST was not paid at the relevant time that the payment automatically invites the liability of payi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aside the said order of Gujarat High Court. The pre-import condition in the Notification No.79/2017 dated 13.10.2017 has been held to be valid and intra vires. Also it is an admission of appellant itself that pre-import conditions were not fulfilled by the appellant. Though the plea taken to be a bonafide mistake but today it stands established that appellant was not entitled for availing IGST exemption under Advance Authorization. The said amount of IGST was paid voluntarily at a later date subsequent to the re-assessment of 18 Bill of Entries. 14. Coming to the decision in the case of Mahindra & Mahindra (supra), we hold that present is the case where interest on late payment of IGST is prayed to be refunded whereas in the said case (Mahindra & Mahindra) the refund claim was filed about amount of interest paid alongwith additional duty of customs which was paid at the date later than the relevant date. We are of the opinion that IGST on imports is not additional duty of customs hence the logic arrived at by Bombay High Court (affirmed by Hon'ble Supreme Court) is not applicable to the interest on IGST. The opinion is based on following discussion on statutory provisions. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble pool of taxes under Article 270 which are shared between the Centre and States as per the recommendations of the Finance Commission. 16. Goods and Services Tax is levied on the supply of goods and services and not on importation. The expression "Goods and Services Tax" can be understood from the definition in clause (12A) of Article 366. It reads as follows: "366. Definitions.- In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say- (12A) "goods and services tax" means any tax on supply of goods, or services or both except taxes on the supply of the alcoholic liquor for human consumption" 17. If the supply of goods and services is across the states, such inter-state supply is the taxable event for levy of IGST. Article 246A provides for collection of Goods and Services Tax notwithstanding Article 246. Clause (2) of this Article empowers the Union to levy IGST. It reads as follows: "Article 246A - Special provision with respect to goods and services tax (1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section reads as follows: "Section 5 - Levy and collection (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: Provided that the integrated tax on goods other than the goods as may be notified by the Government on the recommendations of the Council imported into India shall be levied and collected in accordance with the provisions of section 3 of the Customs Tariff Act, 1975 (51 of 1975) on the value as determined under the said Act at the point when duties of customs are levied on the said goods under section 12 of the Customs Act, 1962 (52 of 1962). (2) The integrated tax on the supply of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition also includes supply in the course of importation. The charging section for collection of IGST on the imported goods is section 4 of the IGST Act read with section 3(8) of the Customs Tariff Act. The Constitutional mandate for collection of IGST is clause (2) of 246A. IGST is credited to Major Budget head 0008 and it has to be apportioned between the Centre and States as decided by Parliament on the recommendations of GST Council. Therefore, the IGST collected when goods are imported is not a duty of customs. 29. It also needs to be noted that the charge of IGST is not just under section 3 of the Customs Tariff Act but under this section read with section 5 of the IGST Act. Therefore, unlike in the case of customs duties, no rate of IGST is prescribed either in the schedules to the Customs Tariff Act or under any notification issued under the Customs Tariff Act. Section 3 of the Customs Tariff Act refers to the IGST payable under section 5 of the IGST Act. In other words, whatever is payable under the IGST Act on inter-state supplies within India is payable under section 3 of the Customs Tariff Act read with section 5 of the IGST Act if the supplies are in the course of im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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