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TMI Blog2024 (6) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... e officers opined that the items imported are liable to pay IGST @18% as per Sl. No.453 of the Schedule III of the Notification 01/2017. Thus, the dispute in these appeals is with respect to eligibility of Sl. No. 232 of Notification No 1/2017-IGST(Rate) to the goods imported by the appellant. It is observed that CBIC Circular No. 113/32/2019-GST dated October 11, 2019 also supports this view. The said Circular clarifies the applicability of GST on the parts and accessories suitable for use solely or principally with a medical device. By the said Circular No. 113/32/2019-GST, it was clarified that same rate of GST would be applicable on the parts and accessories suitable for use solely or principally with a medical device as the rate of GST on the medical device and such parts would not be classified under residuary entry. It is observed that the impugned goods are suitable for use solely or principally with the ball point pens only, thus, should be classifiable with ball point pens. The impugned goods are eligible for availment of IGST @12% as provided under S.No. 232 of Schedule II under the IGST Goods Rate Notification 01/2017 dated 28.06.2017 - the demand of IGST confirmed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962. 3. The Notices were adjudicated by the Ld. Additional Commissioner of Customs (Port), Kolkata vide Orders-in-Original dated 18.06.2019 and 16.11.2020 wherein he has rejected the IGST rate of 12% claimed by the appellant in respect of Bill of Entry No. 2058819 dated 14.02.2019 and in respect of 11 out of 13 Bills of Entry relating to the other Notice, thereby re-determining the impugned goods under 18% IGST under the residuary entry 96089900. 3.1 On appeal, the Ld. Commissioner (Appeals) upheld the said Orders-in-Original vide the impugned Orders-in-Appeal dated 24.03.2021 and 13.02.2023. Aggrieved against the impugned orders, the appellant has filed these appeals. 4. The appellant submits that for the purpose classification of the imported goods and levy of IGST, the General Rules for the Interpretation ( GIR ), Chapter Notes and Additional Notes under the GIR must be considered. The IGST Goods Rate Notification must be read with reference to Headings in the Customs Tariff Act along with their respective Section and Chapter Notes and the General Rules of Interpretation. 4.1. The appellant submits that they have classified the goods imported by them under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver parts of general use, as defined in Note 2 of Section XV, of base metal (Section XV), or similar goods of plastics (Chapter 39); as such, all identifiable parts of items (falling under Chapter 96), which are not of general use, shall be classified with the main item under same tariff heading. 4.6. It is therefore contended by the appellant that both these Circulars, as discussed supra, have clarified on the basis of Explanation (iii) and (iv) of the IGST Goods Rate Notification itself, which states that the said notification must be read with reference to Headings in the Customs Tariff Act along with their respective Section and Chapter Notes and the General Rules of Interpretation. They also contend that similar analogy can be applied to the present case to state that impugned goods are suitable for use solely or principally with the ball point pens only, thus, should be classifiable with ball point pens, i.e., under S.No. 232 of Schedule II under the IGST Goods Rate Notification. 4.7. The appellant submits that the impugned Orders-in-Appeal are silent on Circular No. 113, which was submitted by them in writing to the appellate authority at time of personal hearing; Circular N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise, Mumbai-III reported as 2000 (121) ELT 178 (Tri) which has been upheld by the Hon ble Supreme court as reported in 2001 (128) E.L.T. A72 (S.C.). 5.3. From the above, it is clear that parts of pens which are specially designed merits clarification along with pens only. 5.4. In view of the above submissions, the appellant prayed for setting aside the impugned orders. 6. The Ld. Authorized Representative for the Revenue reiterated the findings in the impugned orders. 7. Heard both sides and perused the appeal documents. 8. We observe that the appellant imported certain goods and declared them as 'Parts of Ball Point Pen Tips: Blank Ball Pen Tips made of NM6 alloy' classifying the same under HSN 960899990 of the First Schedule of Customs Tariff Act, 1975, chargeable to Basic Customs Duty @5% under Notification 50/2017-Cus dated 30.06.2017. For the purpose of IGST, the appellant claimed benefit of Sl. No.232 of Notification 01/2017-Cus dated 28.06.2017. As per the Sl. No. 232 of the Schedule II of the Notification No. 01/2017, the appellant claimed IGST @12% for the goods imported. On examination of the goods imported by the appellant, the officers opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 608 as reproduced below: The heading also covers identifiable parts not more specifically included elsewhere in the Nomenclature. For example: Pen nibs of any design including unfinished nibs roughly cut to shape : clips; refills for ball point pens, comprising the ball point and the ink reservoir; holders for the ball points or felts of marking stylographs; inkflow regulators; barrels for pens or pencils of this heading; filling or propelling mechanisms; ink sacs of rubber or other materials; point protectors; interchangeable renew nib units comprising nib, feed and collar; nib points (or pen points) which are small balls made from platinum alloys or from certain tungsten alloys used for pointing the tips of pen nibs to prevent premature wear. (emphasis supplied) 8.5. From the perusal of the above provisions, it is apparent, that all sorts of Pens including Ball Point Pens and the Parts of such Pen are covered under Heading 9608. Once parts of the pens are classified under the heading 9608, then the goods would be eligible for the benefit of IGST @12% as provided in Sl. No. 232 of Schedule II to Notification 01/2017. 8.6. We observe that CBIC (TRU) vide Circular No. 113/32/2019-GS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote 2 of Section XV, of base metal (Section XV), or similar goods of plastics (Chapter 39). As such, all identifiable parts of items (falling under Chapter 96), which are not of general use, shall be classified with the main item under same tariff heading. 8.8. We observe that CBIC Circular No. 113/32/2019-GST dated October 11, 2019 also supports this view. The said Circular clarifies the applicability of GST on the parts and accessories suitable for use solely or principally with a medical device. By the said Circular No. 113/32/2019-GST, it was clarified that same rate of GST would be applicable on the parts and accessories suitable for use solely or principally with a medical device as the rate of GST on the medical device and such parts would not be classified under residuary entry . We observe that the impugned goods are suitable for use solely or principally with the ball point pens only, thus, should be classifiable with ball point pens. Circular No. 155/11/2021- GST dated June 17, 2021, which clarified the GST rate on laterals and parts of Sprinklers or Drip Irrigation System also supports this view. Accordingly, as per the clarifications issued by the Circulars mentioned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s these would be 'tubes'. The unfinished pen nibs would fall under those Tariff headings which cover the base metals. Ink sacs of rubber would ordinarily fall under heading 40.09. They are made to fall under heading 96.08 because they are identifiable parts and are made specifically for use in the manufacture of pens. The same logic should apply to the goods falling under heading 96.09 also although there is no specific nomenclature covering the parts. 9. The guidelines for classification are given in the Interpretative Rules but in a number of judgments the function to be discharged by a particular article has also been taken into account as aid for such classification. The function aspect has prevailed in the following judgments: (1) Reckitt Coleman Co. Ltd. - 1994 (71) E.L.T. 44 (2) Shivaji Works Ltd. - 1994 (69) E.L.T. 674. 10. In their decision in the case of CCE v. A.C.C. Ltd. - 1989 (44) E.L.T. 271 the Tribunal considered the primary function of mill bolts as fastening of two articles together and therefore classified the same under item No. 52 in preference to the residual item 68. In a recent judgment of the Supreme Court (J.B.A Printing Inks Ltd. v. CCE - 2000 (11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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