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TMI Blog2021 (10) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. Moreover, it is also seen that the conditions envisaged in the above entry remains unchanged even after an intervening period of more than 2 years after the initial insertion of the aforementioned entry. It therefore appears that the Government intends to give benefit of the aforementioned entry only to those manufacturers who manufacture Fly Ash Bricks which contain 90% or more fly ash content - Rule 2(a) of the General Rules of Interpretation is not applicable for classification of Fly Ash Bricks in the present case. Fly Ash Bricks found mention in Sr.No.177 of Schedule-II of Notification No.01/2017-Central Tax (Rate) dated 28.06.2017(on which GST leviability was 12%) but was omitted from Sr.No.177 with effect from 15.11.2017 vide Notification No.41/2017-Central Tax (Rate) dated 14.11.2017. Further, it is also seen that vide Notification No.41/2017-Central Tax (Rate) dated 14.11.2017 which amended Notification No.1/2017-Central Tax (Rate), Sr.No.225A has been inserted in Schedule-I of the said notification wherein Fly Ash Bricks with 90% or more fly ash content, finds mention. However, since the Fly Ash Bricks manufactured by the appellant are containing Fly Ash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bricks is specifically covered under Tariff item no.68159910 whereas Fly Ash Blocks are covered under the Tariff item no. 68159990(others) of the First Schedule to the Customs Tariff Act, 1975(51 of 1975). (ii) That both Fly Ash Bricks and Fly Ash Blocks appear at Sr. No.177 in Schedule-II of the Notification No:01/2017-Central Tax(Rate) dated 28.06.2017 on which the applicable rate of GST is 12% (6% SGST + 6% CGST). (iii) Notification No:01/2017-Central Tax(Rate) dated 28.06.2017 has been amended vide Notification No.41/2017-Central Tax (Rate) dated 14.11.2017 (effective from 15.11.2017) wherein the entry Fly Ash Bricks was omitted from Sr.No.177 in Schedule-II of above Notification. As per Notification No.41/2017-Central Tax (Rate) dated 14.11.2017 (effective from 15.11.2017), Sr.No.225A was inserted after Sr.No.225 in Schedule-I of Notification No.01/2017-Central Tax(Rate) dated 28.06.2017 which reads as under: S.No. Chapter/Heading/Subheading/Tariff item Description of goods 225A. 6815 Fly ash bricks or fly ash aggregate with 90 percent or mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from time to time) issued under the CGST Act, 2017 (2) The product Fly Ash Blocks manufactured and supplied by Dipakkumar Ramjibhai Patel (M/s. Mahalaxmi Cement products and Timber) are classifiable under Tariff item No.68159990 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). Applicability of GST rate on the said product would be 12% GST (6% SGST + 6% CGST) upto 31.12.2018 and 5% GST (2.5% SGST + 2.5% CGST) with effect from 01.01.2019 as per Notification No:01/2017Central Tax(Rate) dated 28.06.2017 (as amended from time to time) issued under the CGST Act, 2017. 6. Aggrieved with the aforesaid ruling, the appellant has filed the present appeal on 31.08.2020. The appellant has submitted as under: (i) They are a proprietary concern duly registered under the Central/Gujarat/Integrated Goods and Services Tax Act, 2017 and is engaged in the manufacturing and selling of Fly Ash Bricks and Fly Ash Blocks. (ii) As per the manufacturing process of the Fly Ash Bricks submitted by the appellant, Fly Ash Bricks are made using the waste of thermal power plant. The ash of burnt coal is used as an input, thus reinforcing the idea of turning waste into we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is very often extracted from the farms leading to loss of fertile soil and losses to farmers. (f) In opinion of many construction workers and supervisors, the Fly Ash Brick building requires less water during construction. This is a very significant advantage in a country that faces water shortages practically every year. (ix) After introduction of the GST regime, the product Fly Ash Bricks and Fly Ash Blocks were classified under Notification No. 1/2017 (CGST-Rate) dated 28.06.2017 at Sr. no. 177 as under for the period from 1.7.2017 to 14.11.2017: Serial No Chapter Heading Description of Goods GST Rate 177 6815 Fly Ash Bricks and Fly Ash Blocks 12% (x) As per amendment made by Notification No. 41/2017 Central Tax (Rate) dated 14.11.2017, Fly Ash Bricks were omitted from the entry 177 of schedule II new entry 225A has been inserted in schedule I for Fly Ash Bricks which read as under: Serial No Chapter Heading Description of Goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgement of Hon. Supreme Court in the case of Collector Of Central Excise v/s Wood Craft Products Ltd 1995 (77) ELT 23 (SC) wherein it is observed as under: 12. It is significant, as expressly stated, in the Statement of Objects and Reasons, that the central excise tariffs are based on the HSN and the internationally accepted nomenclature was taken into account to reduce disputes on account of tariff classification . Accordingly, for resolving any dispute relating to tariff classification, a safe guide is the internationally accepted nomenclature emerging from the HSN. This being the expressly acknowledged basis of the structure of central excise tariff in the Act and the tariff classification made therein, in case of any doubt the HSN is a safe guide for ascertaining the true meaning of any expression used in the Act. The ISI Glossary of Terms has a different purpose and, therefore, the specific purpose of tariff classification for which the internationally accepted nomenclature in HSN has been adopted, for enacting the Central Excise Tariff Act, 1985, must be preferred, in case of any difference between the meaning of the expression given in the HSN and the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification no 41/2017 Central Tax (Rate) Dt:14/11/2017 in consonance of the minutes of the GST Council suggested as follows (please refer page 19 point no 19.2 of minutes of meeting): 19.2 The Hon ble Minister from Odisha stated that at Sr. No.40 of Annexure I1 of the Agenda Notes to agenda item 6(i), the rate of tax on fly ash bricks was rightly proposed to be reduced from 12% to 5%. He suggested that fly ash aggregates, which were chip like products and consumed almost 90% of fly ash, should also be covered in this entry and should be charged to tax at the rate of 5%. Shri TuhinKanta Pandey, Principal Secretary (Finance), Odisha, suggested that fly ash aggregates should be classified under Chapter Heading 68 15. The Secretary suggested that rate of tax on fly ash aggregate with 90% or more fly ash content, falling under Chapter Heading 6815 may be reduced to 5%.The Council agreed to the suggestion. (xix) Therefore, on going through the GST Council Minutes, it seems that the intention was to tax fly ash bricks irrespective of the content of fly ash at the rate of 5% and fly ash aggregate at the rate of 5% if the fly ash content was more than 90%. Therefore, the counci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which Fly Ash Bricks comprises of fly ash content less than 60% and therefore, the stand taken by the respected advance ruling authorities of 90% or more fly ash content as an ingredient based on the custom tariff is erroneous and required to be modified in the present appeal. Other than the appellant, the major manufacturers of India who are manufacturing Fly Ash Bricks are using less than 60% of fly ash content. The appellant has attached extract of web site of Fly Ash Bricks manufacturer for ready reference and therefore, the advance ruling order is required to be modified in the present appeal by holding that Fly Ash Bricks are covered by entry 225B of Schedule I of notification no 1/2017 Central Tax (Rate) Dt:- 28.06.2017. (xxiii) In the alternative, they further rely upon the general rules of interpretation of the Customs tariff which have been borrowed for the purpose of interpreting GST rate notification by clause (iv) of the Explanation to the rate notification issued under the GST Acts. Rule 2(a) of the general rules of interpretation which is relevant for the present purpose reads as under: 2. (a) Any reference in a heading to an article shall be taken to inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting classification of Fly Ash Bricks under the entry 225B of Schedule-I of Notification No.1/2017-Central Tax(Rate) dated 28.06.2017. (xxviii) Respected advance ruling authorities has passed advance ruling order on 02.07.2020 in case of the appellant which is received by the appellant on 09.07.2020. The appellant is required to file an appeal within 30 days as per provision of section 100(2) of the GST Act. Therefore, last date to file an appeal is 09.08.2020. The appellant is relying upon the notification no 35/2020 Central Tax Dt: -03.04.2020 and notification no.55/2020 Central Tax Dt: - 27.06.2020 which speaks that any appeal which is required to be filed between 20/03/2020 to 30/08/2020 can be filed on or before 31/08/2020. 7. The appellant has concluded his submission by requesting as under: (a) The appeal may please be admitted for regular hearing by condoning delay in view of notification no.35/2020 55/2020 of Central Tax. (b) The impugned order passed by the learned Advance ruling authority in so far as it holds that Fly Ash Bricks is covered by entry 453 of Schedule III of notification no 1/2017 Central Tax (Rate) dated 28.06.2017 and liable to 18% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer Hospital(Surat) due to Pneumonia, was quarantined in the hospital between 08.08.2020 to 23.08.2020 as he had visited Covid-19 ward in the said hospital and that the advocate s son was hospitalized from 24.8.2020 onwards due to fever and infection. They have also relied upon Notification No.35/2020-Central Tax dated 03.04.2020 and Notification No.55/2020-Central Tax dated 27.06.2020 which speaks that any appeal which is required to be filed between 20.03.2020 and 30.08.2020 can be filed on or before 31.08.2020 and has requested to admit their appeal for regular hearing by condoning delay in filing appeal in view of the aforesaid notifications. We, therefore, find it necessary to go through the provisions of the aforementioned notifications. Notification No.35/2020-Central Tax dated 03.04.2020 reads as under: G.S.R.....(E). In exercise of the powers conferred by section 168A of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereafter in this notification referred to as the said Act), read with section 20 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), and section 21 of Union Territory Goods and Services Tax Act, 2017 (14 of 2017), in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, has been specified in, or prescribed or notified under the said Act, which falls during the period from the 20th day of March, 2020 to the 30th day of August, 2020, and where completion or compliance of such action has not been made within such time, then, the time limit for completion or compliance of such action, shall be extended upto the 31st day of August, 2020, including for the purposes of- (a) completion of any proceeding or --------- (b) filing of any appeal, reply or application or furnishing of any report, document, return, statement or such other record, by whatever name called, under the provisions of the Acts stated above; 11.3 As per the provisions of Notification No.35/2020-Central Tax dated 03.04.2020(as amended), any appeal which was required to be filed between 20.03.2020 and 30.08.2020 can be filed on or before 31.08.2020. We find that the appellant was required to file the appeal in the present case, on or before 07.08.2020, but has filed the same on 31.08.2020 i.e. within the time limit provided in the aforementioned notification. In view of the above, we find that there is no delay on the part of the appellant in filing the said appeal whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68152000 Articles of peat Kg. - Other articles : 68159100 Containing magnesite, dolomite or chromite Kg. 681599 Others 68159910 Bricks and tiles of fly ash Kg. 68159920 Sanitary wares, kitchen wares and other made up articles of fly ash. Kg. 68159990 Other Kg. 14. On going through the above details, it is found that Fly Ash Bricks are specifically covered under the sub-heading 68159910 and reads as Bricks and tiles of fly ash . In view of the fact that there is a specific entry for Fly Ash Bricks as mentioned above, it does not appear necessary to refer to the chapter notes or Explanatory notes in HSN. Even otherwise, the classification is not in dispute since the appellant themselves have stated in their submission that their product Fly Ash Bricks falls under Chapter Heading 6815 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g/Tariff item Description of goods 225A 66020000 Walking sticks including seat sticks. 225B 6815 Fly ash bricks or fly ash aggregate with 90 per cent or more fly ash content; Fly ash blocks ; On going through the Notification No.01/2017-Central Tax(Rate) dated 28.06.2017 and the various notifications amending it, it is found as under: (i) that Fly Ash Bricks find mention in Sr.No.177 of Schedule-II of Notification No.01/2017-Central Tax(Rate)till 14.11.2017 on which GST liability is 12%(6% SGST + 6% CGST). (ii) that Fly Ash Bricks find mention at Sr.No.225A of Schedule-I of the above notification albeit with a condition that it should contain 90% or more fly ash content w.e.f. 15.11.2017 till 31.12.2018. (iii) that aforesaid entry of Fly Ash Bricks appearing at Sr.No.225A has been shifted to Sr.No.225B in Schedule-I of the above notification w.e.f 01.01.2019 and remains unchanged till date. (iv) That Fly Ash Bricks do not find any specific mention under any other entry in any of the Schedules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01/2017Central Tax(Rate) of the GST Act. (ii) the Advance Ruling authorities has wrongly taken reference of Customs Tariff through the entry 225B of Schedule-I of Notification No.01/2017-Central Tax(Rate)of the GST Act is expressly cover Fly Ash Brick under HSN 6815. In this regard, we find that there is no dispute with regard to the classification of Fly Ash Bricks which is undoubtedly classified under the Heading 6815 (specific subheading 68159910) of the Customs Tariff Act, 1975(51 of 1975). There is also no dispute on the fact that Fly Ash Bricks classified under Heading 6815 of the Customs Tariff Act, 1975(51 of 1975) finds mention at Sr.No.225B of Schedule-I of Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. The only dispute is with regard to the condition envisaged under the Column Description of goods corresponding to the Sr. No.225B above, which specifically states that it covers only Fly ash bricks or fly ash aggregate with 90 per cent or more fly ash content which also means that Fly Ash Bricks classified under Heading 6815 of the Customs Tariff Act, 1975(51 of 1975) having less than 90% fly ash content does not get covered under the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. No. Chapter/Heading/Sub-heading/Tariff item Description Present GST Rate GST Rate Recommended 44 6815 (a) Fly ash bricks 12% 5% (b) Fly ash aggregate with 90% or more fly ash content 18% 5% 21.1 The appellant has further contended that as per the recommendation of the council, Fly Ash Bricks and fly ash aggregate with 90% or more fly ash content are differently classified, but the advance ruling authority has erroneously applied the condition of 90% or more fly ash content to the product in question i.e. Fly Ash Bricks while giving advance ruling order; that the condition of 90% or more fly ash content is applicable to the aggregate of fly ash and not applicable to the Fly Ash Bricks, hence, advance ruling order is required to be modified to the extent of classification made of Fly Ash Bricks under Entry 453 of Schedule III of notification no 1/2017 Central Tax (Rate) Dt:- 28/06/2017 and required to be held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that the Government intends to give benefit of the aforementioned entry only to those manufacturers who manufacture Fly Ash Bricks which contain 90% or more fly ash content. Further, since the description of goods corresponding to the Sr.No.225B of Schedule-I of Notification No.01/2017-Central Tax(Rate) dated 28.06.2017(as amended from time to time) specifically mentions Fly ash bricks or fly ash aggregate with 90 per cent or more fly ash content , it obviously means that it covers only; (a) Fly Ash Bricks with 90% or more fly ash content OR (b) Fly ash aggregates with 90% or more fly ash content. It can therefore be easily inferred from the above that the said entry excludes Fly Ash Bricks containing less than 90% fly ash content. In short, from a plain reading of the description under the column description of goods corresponding to the Sr.No.225B, it can be derived that the said entry covers three products as under: (i) Fly Ash Bricks with 90% or more fly ash content. (ii) Fly Ash Aggregate with 90% or more fly ash content. (iii) Fly Ash Blocks . Further, since the appellant has specifically mentioned that the Fly Ash Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the general rules of interpretation of the Customs tariff which have been borrowed for the purpose of interpreting GST rate notification by clause (iv) of the Explanation to the rate notification issued under the GST Acts. Rule 2(a) of the general rules of interpretation which is relevant for the present purpose reads as under: 2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished articles has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or failing to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. 23.1 As per Rule 2(a) of the General Rules for the Interpretation of the CTA, 1975, any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. . In this regard, we observe that Fly Ash Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sifications available for a particular product. In the instant case, we find that there is absolutely no dispute with regard to the classification of Fly Ash Bricks which we find, is classifiable under Heading 6815(specific sub-heading 68159910) of the Customs Tariff Act, 1975 as discussed earlier and the appellant themselves have no issues with regard to the said classification. Hence, the said judgement is not applicable to the instant case. As regards, the judgement mentioned at (b) above, it pertains to late filing of Income-tax return by the Income-tax assessee and is therefore not applicable to the instant case. 25. In view of the discussions in the foregoing paras, we find that Fly Ash Bricks found mention in Sr.No.177 of Schedule-II of Notification No.01/2017-Central Tax (Rate) dated 28.06.2017(on which GST leviability was 12%) but was omitted from Sr.No.177 with effect from 15.11.2017 vide Notification No.41/2017-Central Tax (Rate) dated 14.11.2017. Further, it is also seen that vide Notification No.41/2017-Central Tax (Rate) dated 14.11.2017 which amended Notification No.1/2017-Central Tax (Rate), Sr.No.225A has been inserted in Schedule-I of the said notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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