RATE OF TAX ON DENTISTS' CHAIRS, INSTRUMENTS & APPLIANCES, Goods and Services Tax - GST

[Sadanand Bulbule]

Dear experts,

Please clarify the HSN Code and the rate of GST with relevant notification issued by the GOI on the following goods:

1] Dentists' Chairs.

2] Instruments and appliances used in dental sciences.

If possible, any rulings on the classification of above goods rendered during pre or post GST regime.

Posts / Replies

[Sadanand Bulbule]

Dear all

I fully endorse the last comments of Sri. K L Sethi Sir.

Facts are the doors for truth. So one has to touch the facts before he decides to decide the decisions. No one is authorized to manipulate or modify or alter the CTH, much less the GOI and the GST Department. It has no legal and territorial jurisdiction for such misadventure. This is not going to work legally and technically for any purpose. Despite, if the adjudicating authority dares to do it, then it is the sad part of adjudication. It means, it is not caring for the truth. This is the basic question the adjudicating authority has to address legally, carefully and consciously. The end result is written on the wall.

There is World Customs Organization [WCO] to decide all the matters relating CTH globally.

[ This is my personal opinion only. Readers are at liberty to disagree it also]

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Thank you very much, Sir.

In support of your views, here is another judgement of Hon'ble Supreme Court. Relevant extract is given below :-

"Adjudication - Classification of goods - Where two opinions are possible, assessee should be given benefit of doubt and the opinion favourable to it should be given effect to - Sections 11A(2) and 33 of Central Excise Act, 1944 - Rule 173B of Central Excise Rules, 1944." in the case of POULOSE AND MATHEN Versus COLLECTOR OF CENTRAL EXCISE - 1997 (2) TMI 98 - SUPREME COURT. Appeal allowed.

Relied in

Ocean Marketing Vs. CCE Jaipur - 2017 (2) TMI 708 - CESTAT NEW DELHI

[KALLESHAMURTHY MURTHY]

Dear Sir Kasturi Sethi Ji and Sri Bulbule sir.

The response of Sri Kasturi Sethi Ji in Sl. No. 25 is affirmative and determinative. The Judgement referred to in Sl. No. 27, is a backbone for taking a firm stand. Now the issue is crystal clear. The discussions and the way of taking the matter into a finality with the various references to Judgements and Law are remarkable. Thanks to both of you Sirs. 

With respects.

[Sadanand Bulbule]

Dear all

Even the USA Customs Ruling Authority has held that, "Dentists' chairs incorporating dental appliances or dental spittoons are classifiable under HS 9018". Many EU nations while having Preferential Trade Agreements with third countries have recognized, adopted and amplified the classification of such dental chairs under HS 9018 only.

Ref: Customs Ruling of the USA-HQ 965968. December 16, 2002. CLA-2 RR: CR: GC 965968 DBS Category: Classification TARIFF NO.: 9405.40.60.Mr.Jack D.Mlawski, Galvin & Mlawski, 470 Park Avenue Suite 200 – South Tower, New York, NY 10016–6819.

With such global rulings on the subjects goods falling under HS 9018, there shall not be further doubts in the mind of the Adjudicating Authorities and they are bound to give effect to the same without any hesitation in the interest of natural justice.

[KASTURI SETHI]

Sh.Kalleshamurthy Murthy Ji,

Sir, Thanks a lot. Your concurrence with the views expressed by both of us on the issue matters a lot. Hope our voice will reach the Proper Officers of the department and we can expect natural justice in the interest of Trade and Industry.

[Sadanand Bulbule]

Dear all

1.In continuation of our efforts in averting irrational interpretation of HSN 9018 under discussion, I wish to add the following relevant part of the ruling 27/10/2010 of the United States Court of International Trade, New York rendered in the case of TRUMPF MEDICAL SYSTEMS, INC[Plaintiff] Vs. UNITED STATES [Defendant] before: Pogue, Judge Court No. 07-00316.

In interpreting and applying the Harmonized Tariff Schedule of the United States [HTSUS], the court looks to the General Rules of Interpretation (“GRI”), as well as the Additional United States Rules of Interpretation (“ARI”). See Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed Cir. 1998); Faus Group Inc. V. United States, 28 CIT 1879, 358 F.Supp 2d. 1244, 1250 (2004).

GRI (1) states that, for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.

GRI (1) is “intended to make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification.” 1 World Customs Org., Harmonized Commodity Description & Coding Sys., Explanatory Notes 1 (3 ed. 2002) (“Explanatory Notes”).20 Thus, interpretation of tariff headings, and the court’s analysis, originate in the language of the Headings, Subheadings, Section Notes and Chapter Notes of the relevant parts of the Harmonized Tariff Schedule of the United States [HTSUS], in this case, Chapters 90, and 94.21

2. So for the purpose of present discussion also, the ratio of the above ruling squarely applies in classifying the "dental chairs incorporating equipment or dental spittoons" under HSN 9018 eligible to 12% tax. HSN 9018 recoznises such dental chairs as complete dental equipment on its base by itself. And the opening notes to HSN Chapter 94 plays a decisive role in this regard. Consequently in my considered opinion, it can never be interpreted as falling under HSN 9402 attracting 18 % tax and any attempt to do would be futile.

[Sadanand Bulbule]

Dear all

With all this legal position, if the adjudicating authority is at cross roads, it is advised to seek expertise as provided under Section 153 of the GST Act from the Chief Commissioner of Customs or the DGFT for official clarification, who are the primary authorities to decide the classification of subject goods under HSN 9018 or otherwise. This clarification would be binding on all the stakeholders to avoid needless litigation.

[KASTURI SETHI]

Dear Sir,

This is with reference to your replies at serial nos.31 & 32 above, you are not only helping yourself but also others who are facing the same problem.

[KASTURI SETHI]

Dear Sir,

If the departmental officers has confusion regarding classification or rate of tax, the undermentioned case law may be useful in the above issue, if extended period has been invoked.

"There was confusion in minds of even Departmental Officers as to whether Service Tax was leviable on services provided by assessee, extended period cannot be invoked".--------Bombay High Court in the case of CCE, Nagpur Vs. Maharashtra State Seed Certification Agency - 2014 (12) TMI 1349 - BOMBAY HIGH COURT.

[Sadanand Bulbule]

Dear all

Here I wish to add that, the ' Proper Officers' who are well acquainted with the provisions of the Customs Act and the depleted Central Excise Act and Service Tax Act as regards to the classification of goods or services under specific HSN/SAC, they might not find it difficult to accept the classification of goods/services falling under a specific HSN/CTH/SAC and the corresponding rate of tax under the GST Act.

On the other hand, factually the officers who are "new" to the provisions of the Customs Act and the depleted Central Excise Act or the Service Tax Act are suffering from deep confusion on this aspect. And the confusion is leading to needless disputes. So they are requested to upgrade themselves at par with the Customs Authorities or else seek their expertise in removing such confusion and disputes. This request is in the interest of enhancing the graceful adjudication by the other officers too and the slogan of ease of doing business becomes reality. Learning costs nothing but rewards the most and more. No one is born with encyclopedia.

Coming back to the issue on hand, from the highly reliable sources it is gathered that, the adjudicating authority under the CGST Act has accepted the classification of subject goods as falling under HSN 9018 4900 for the reasons discussed in the earlier paras. For confidentiality, the details of the case are not shared in the public platform.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, You and your client are very lucky because natural justice can be expected from only honest, impartial, unprejudiced ethical and knowledgeable A.A. The views expressed at serial no.35 dated 29.10.23 includes all your opinions expressed so far. Though still in the pipeline, I hope that your views will be ratified by the A.A and thus you will get justice at the first stage. (Adjudication stage).

(ii) As and when Order-in-Original is passed, it becomes public document. I request you to post the crucial para of the Order-in-Original here in public interest.

Thanks and deepest regards.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, The knowledge of The Customs Act, The Customs Tariff Act, The Central Excise Act, The Central Excise Tariff Act, The Financial Act, 1994 (Service Tax law) are an absolutely must for all the GST Officers. The GST Acts cannot be properly understood without the basic knowledge of the above Acts. The State GST Officers have no background of the above Acts and that is why the SGST Adjudicating Authorities are adjudicating the SCNs without granting an opportunity for personal hearing. It is a fact as so many cases are in High Courts and Appellate Authorities.

In order to lessen the work-load on the High Courts and the Appellate Authorities and save Govt.'s precious time, and also free the tax payers from rigours of avoidable litigation and stress and tension, the Govt. should arrange training to all the officers and impart basic knowledge of all the above Acts (including repealed Acts).

Your valuable advice/suggestion will prove panacea as this advice/suggestion is not only in the interest of new officers but also in the interest of Trade and Industry. Hence in the interest of our BHARAT also.

Hope your voice will reach the concerned higher GST Authorities.

Thanks for taking initiative.

[Sadanand Bulbule]

Dear all

The Customs Tariff Act [CTA] including its chapter notes, headings, explanation and notifications have to be read in the literal words conjointly to determine the correct HSN and the rate of tax under the GST Act. Sometime it is allegorical. The obvious, accurate and thorough interpretation of the CTA in full is needed for the inspiration of the common man to understand deeper meanings often hidden in clues within the words of the CTA and to adopt them under the GST Act for proper classification of HSN/rate of tax.

The scholarly and reason guided minds can easily arrive at the reality of the law, without any intermediary, to unfold the truth. Then the tax payer and the Government enjoy greater authenticity of facts. But men with doubting mental state cannot arrive at such reality. Rather it disintegrates the clear perception. So deeper the true knowledge, higher the benefits of clarity and lesser the litigation.

[Sadanand Bulbule]

Kerala High Court

Mubarak vs State Of Kerala  - 2002 (9) TMI 903 - KERALA HIGH COURT

[Sadanand Bulbule]

Dear all

"Happy Diwali. Let the festival of lights dispel the darkness of ignorance outside and inside."

The authority who uses pure wisdom, the highest gift of God to study sincerely the message of law and judicial rulings, find it faithful travel companion that will not only guide and encourage, but also caution and protect all the stakeholders equally. Blind attachment for unsustainable revenue is unacceptable nor it survives too. So why to waste precious time and energy to please a man in the darkroom? It is pointlessness. Let there be a full stop for this.

Absence of light means the darkness, the ignorance: absence of darkness means the light, the pure wisdom. Honesty comes with clarity and right results come from clarity.

[Sadanand Bulbule]

Dear all

Plz refer my reply at Sl No. 26 dated 22/09/2023, wherein it was categorically clarified that, no one including the GOI & the GST Department is authorized to modify the classification of goods under the Customs Tariff Act.

In support of this, recently the Hon'ble Madras High Court in its ruling rendered in the case of Parle Agro Pvt Ltd - 2023 (11) TMI 601 - MADRAS HIGH COURT has held that, the GST Council cannot classify the goods under the Customs Tariff Act, 1975.

So the adjudicating authorities are informed not to venture for such futile attempt. Rather calmly study the CTA and the GST Act conjointly to arrive at the proper, sustainable and judicious decision in the interest of equity. Revenue is more safe when the law is respected.

[Sadanand Bulbule]

Dear all

It is official.

1. The Customs Authorities, GOI, have classified "Dental chair incorporating dental appliances of 9018 or dental spittoons of 9018" under HSN Code 9018 4900 during pre-GST and post GST regimes. Accordingly since 01/07/2017, the said authorities are collecting 12% IGST under Section 3[7] of the CTA, 1975 on import of such goods. This classification is arrived at based on the technical specifications of the subject goods. This fact has been evidenced by the "Bills of Entry" of importers as mandated under Section 46 of the Customs Act,1962. As such 12% tax applies on such goods supplied in the course of intra-state and inter-state also. The CGST Authorities in Bengaluru have also accepted the classification of subject goods under the same HSN Code in their audit proceedings under Section 65 of the GST Act, 2017 itself.

2.Here the reference of General Rules of Interpretation [GRI] under the CTA, 1975 is very crucial as officially clarified by the Chief Commissioner of Customs, GOI, Karnataka, Bengaluru vide its letter F. No. CCCO/TECH/REP/229/2023-Tech dated 11/12/2023 addressed to me. In this regard, I remain grateful to the Chief Commissioner of Customs.

3. I deeply acknowledge the resourceful contributions of Sh. Sethi Sir and Sri. Kallesh Murthy in taking this issue to the logical end.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, Credit goes to your critical thinking, firm determination, bent of mind (fight-up-to-the-end0. Your these virtues have yielded positive result. Undoubtedly, it is the result of joint efforts but you have played a vital role. Really with achievement of our goal, I am on cloud nine.

[Sadanand Bulbule]

Dear all

With all this authentic deliberations I regret to inform that, the State GST officers are still incompetent to understand the basics of classification of goods under HSN as per the Customs Tariff Act,1975 to determine rate of tax under the GST Act. Consequently grave adjudication orders are coming out relentlessly.

Therefore I earnestly appeal to the GOI, the CBIC and the heads of State Commercial Tax Administration to take note of this fatality. The simple solution is qualified IRS officers serving in the Customs Department be deputed to each State Commercial Tax Administration on par with Kerala State to bring quintessential clarity of universal HSN and to instill professionalism. And it would be a huge asset to generate quality revenue. This is possible only when there is no egocentric attitude on the receiving side. Otherwise owing to grave orders, victimized taxpayers would be transported to graveyards regularly.

Is this what the GST system is meant for? Never. A tree which doesn’t give shadow must be rooted out mercilessly.
Time is waiting for better change at least on the dawn of New Year-2024.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, The matter should be brought to the notice of the Chairperson, GST Council through All India Trade & Industry Association.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, In order to get natural justice, in additional to filing appeal, please also send a copy of Order-in-Original, SCN, copy of reply to the SCN and copy of the copy of above discussion in this forum to the Chairperson, CBIC. New Delhi

I hope you will get justice and it will solve problem of others on this issue.

[Sadanand Bulbule]

Dear Sirji

I have emailed all the related records including TMI discussion to the Chairman, CBIC and the Commissioner [Legal Affairs] CBIC requesting to issue a suitable circular to remove the artificial clouds seeded by the State GST Officers.

Thank you so much for evincing keen interest to get this needless dispute solved in the larger benefit of the trade and industry.

[KASTURI SETHI]

Dear Sir,

I am dead sure that your sincere all-out efforts will yield results in favour of Trade & Industry, rather, in the interest of natural justice and, in turn, in the interest of the whole nation (BHARAT). Injustice at the hands of Original Adjudicating Authority is not the end of the road.

One more humble request. Pl. email gentle reminder to both every fortnight.

[Sadanand Bulbule]

Dear Sirji

Thank you so much for wishing the best of the best for the nation's growth this way. Besides, very shortly I am filing a Writ Petition under Article 226 before the Hon'ble State High Court challenging the validity of mindless and meaningless adjudication order. I know the bunch of super-enlightened brains behind the outcome of this shoddy order. And I am prepared to take up this matter even before the Hon'ble Supreme Court, if need be.

One can hide the truth, but not from the truth.

[Sadanand Bulbule]

Dear all

On 18/01/2024, we had filed Writ Petition No.2094 of 2024 in the Hon'ble High Court of Karnataka, Principal Bench at Bengaluru under Article 226 challenging the legality of foisting unimaginable amount of tax, interest and penalty on the subject goods under discussion.

Today after hearing the petitioner and the Government Advocate, the Hon'ble High Court is pleased to pass an interim order "staying the operation of the impugned order dated 30/12/2023 until the next date of hearing".