Neuvera Wellness Ventures P. Ltd. Vs C.C. Mundra (CESTAT Ahmedabad)
CESTAT Ahmedabad held that Nutritional Supplements classifiable under heading 2106 9099 fall under Serial No. 453 of Schedule III of the Notification No.1/2017-IGST-Rate. Accordingly, IGST @18% is payable and not @28%. Accordingly, demand of differential custom duty unsustainable.
Facts- Issue involved herein is 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 and whether the demand for alleged differential IGST is without jurisdiction and barred by limitation.
Conclusion- Held that the word “that is to say” is “mutatis mutandis” applies in respect of the expression “i.e.” in the present case. Accordingly, the word used „i.e.‟ at serial number 9 of schedule IV of Notification (supra) it is fixed, specific and clear that only the description given in such entry shall be covered by serial no. 9. Consequently the goods of the appellant will fall under Serial No. 453 of Schedule III of the Notification No.1/2017-IGST-Rate, therefore, the demand of differential custom duty shall not sustain.
In the present case for the clearance for the period July 2017 to November 2017, the show cause notice was issued on 09.07.2022. As per the facts narrated above, since there was no suppression of fact on the part of the appellant, the demand is also hit by limitation.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
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.
2. Shri J.C. Patel, Learned counsel along with Shri Rahul Gajera learned advocate appearing on behalf of the appellant submits that the appellant has rightly availed the exemption Notification No.1/2017-IGST-Rate under Serial No. 453 in respect of nutritional supplement imported by the appellant which are preparations of substances such as Creatine, Nitrates, Glutamine and Amino Acid. It is his submission that the department has contended that all such products are categorized under food preparation not elsewhere specified or included as provided under Sr. No. 9 of schedule IV of Notification No.1/2017-IGST-Rate. Accordingly, the product imported by the appellant which are in question since not mentioned in the said entry the same is correctly fall under Serial No. 453 of the said Notification. It is his submission that the department has misinterpreted the term ‘i.e.’. As per the department ‘i.e.’ means example and accordingly it was construed that not only the product specified or included fall under Serial No. 9 of Chapter 2106. He submits that ‘i.e.’ means only specific items which are specified in the entry are covered under the said entry. Any item which is other than the specified items in that entry will not cover under Serial No. 9. He further submits that the entire demand was raised for the period July 2017 to November 2017. The Show Cause Notice was issued on 09.07.2022, therefore, the entire demand is time barred as there is no suppression of fact on the part of the appellant. The goods were cleared under physical assessment of the bills of entry by the Custom Officer, therefore, the description of goods, classification and claim of Notification were very much in the knowledge of the assessing officer therefore, there is no suppression of fact hence the entire demand is time barred. He also submits that in this case whatever differential IGST is demanded, the same is available as an input tax credit to the appellant, therefore, the entire case is of revenue neutral and on that basis also, no malafide can be attributed to the appellant and demand is time barred on this count also. He placed reliance on the following judgments:
