9911796707
TMI Blog2024 (8) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty of customs leviable thereon which is specified in the First Schedule, and the integrated tax, compensation cess leviable thereon, respectively under sub-sections (7) and (9) of section 3 of the Tariff Act, as is in excess of the amount indicated in the corresponding entry in column (3) of the said Table. The main body of the Exemption Notification refers not only to duty of customs leviable thereon which is specified in the First Schedule to the Tariff Act, but also to integrated tax and compensation cess, but column (3) of the Table accompanying the main Notification against serial number 2 refers to only 'duty of customs' on the fair cost of repairs carried out with insurance and freight charges. The decision of the Tribunal in InterGlobe Aviation [2020 (11) TMI 151 - CESTAT NEW DELHI] resulted in the issuance of the Amendment Notification dated 19.07.2021 by the Central Government. This Amendment Notification specifically mentions that it was being issued under section 25(1) of the Customs Act. As noticed above, two amendments were made; the first amendment is that against serial numbers 2 and 3, in column (3), for the words 'Duty of customs', the words 'Said duty, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n provision, it cannot be given retrospective operation. In the present case, though Explanation (d), inserted by the Amendment Notification dated 19.07.2021, proceeds to state that 'for removal of doubts' it is clarified, but the fact is that it imposes integrated tax, which otherwise prior to the introduction of the Explanation was not leviable under the unamended Exemption Notification dated 31.06.2017. It cannot, therefore, be said to be retrospective in nature, more so when neither clause (i) nor clause (ii) specifically mentions that it is retrospective in nature - in terms of section 25(4) of the Customs Act, it would come into force on the date of its issue by the Central Government for publication in the Official Gazette. Though it is correct that for the period upto 30.06.2017, the Exemption Notification No. 94/96 dated 16.12.1996 levied basic customs duty and countervailing duty and the Amendment Notification dated 19.07.2017 levied both basic customs duty and integrated tax, but it is equally true that Exemption Notification dated 30.06.2017, which operated from 01.07.2017 to 18.07.2021, merely levied duty of customs and did not levy integrated tax. It is not possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 WITH CUSTOMS APPEALS OF THE YEAR 2020 51229 51234 51239 51244 51249 51254 51259 51230 51235 51240 51245 51250 51255 51260 51231 51236 51241 51246 51251 51256 51261 51232 51237 51242 51247 51252 51257 51262 51233 51238 51243 51248 51253 51258 AND CUSTOMS APPEAL NO. 51266 OF 2020 WITH CUSTOMS APPEALS OF THE YEAR 2020 51267 51299 51331 51363 51395 51427 51459 51268 51300 51332 51364 51396 51428 51460 51269 51301 51333 51365 51397 51429 51461 51270 51302 51334 51366 51398 51430 51462 51271 51303 51335 51367 51399 51431 51463 51272 51304 51336 51368 51400 51432 51464 51273 51305 51337 51369 51401 51433 51465 51274 51306 51338 51370 51402 51434 51466 51275 51307 51339 51371 51403 51435 51467 51276 51308 51340 51372 51404 51436 51468 51277 51309 51341 51373 51405 51437 51469 51278 51310 51342 51374 51406 51438 51470 51279 51311 51343 51375 51407 51439 51471 51280 51312 51344 51376 51408 51440 51472 51281 51313 51345 51377 51409 51441 51473 51282 51314 51346 51378 51410 51442 51474 51283 51315 51347 51379 51411 51443 51475 51284 51316 51348 51380 51412 51444 51476 51285 51317 51349 51381 51413 51445 51477 51286 51318 51350 51382 51414 51446 51478 51287 51319 51351 51383 51415 51447 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0418 50579 50697 50832 50950 50139 50257 50419 50580 50698 50833 50951 50140 50258 50420 50581 50699 50834 50952 50141 50259 50421 50582 50700 50835 50953 50142 50260 50422 50583 50701 50836 50954 50143 50261 50423 50584 50702 50837 50955 50144 50262 50424 50585 50703 50838 50956 50145 50307 50425 50586 50704 50839 50957 50146 50308 50426 50587 50705 50840 50958 50147 50309 50427 50588 50706 50841 50959 50148 50310 50428 50589 50707 50842 50960 50149 50311 50429 50590 50708 50843 50961 50150 50312 50430 50591 50709 50844 50962 50151 50313 50431 50592 50710 50845 50963 50152 50314 50432 50593 50711 50846 50964 50153 50315 50433 50594 50712 50847 50965 50154 50316 50434 50595 50713 50848 50966 50155 50317 50435 50596 50714 50849 50967 50156 50318 50436 50597 50715 50850 50968 50157 50319 50437 50598 50716 50851 50969 50158 50320 50438 50599 50717 50852 50970 50159 50321 50439 50600 50718 50853 50971 50160 50322 50440 50601 50719 50854 50972 50161 50323 50441 50602 50720 50855 50973 50162 50324 50442 50603 50721 50856 50974 50163 50325 50443 50604 50722 50857 50975 50164 50326 50444 50605 50723 50858 50976 50165 50327 50445 50606 50724 50859 50977 50166 50328 50446 50607 50725 50860 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0224 50386 50505 50665 50800 50918 51036 50225 50387 50506 50666 50801 50919 51037 50226 50388 50507 50667 50802 50920 51038 50227 50389 50508 50668 50803 50921 51039 50228 50390 50509 50669 50804 50922 51040 50229 50391 50510 50670 50805 50923 51041 50230 50392 50511 50671 50806 50924 51042 50231 50393 50512 50672 50807 50925 51043 50232 50394 50513 50673 50808 50926 51044 50233 50395 50514 50674 50809 50927 51045 50234 50396 50515 50675 50810 50928 AND CUSTOMS APPEAL NO. 50028 OF 2022 WITH CUSTOMS APPEALS OF THE YEAR 2022 50029 50033 50037 50041 50045 50049 50053 50030 50034 50038 50042 50046 50050 50054 50031 50035 50039 50043 50047 50051 50055 50032 50036 50040 50044 50048 50052 AND CUSTOMS APPEAL NO. 54503 OF 2023 AND CUSTOMS APPEALS OF THE YEAR 2023 54504 54527 54550 54573 54596 54619 54642 54505 54528 54551 54574 54597 54620 54643 54506 54529 54552 54575 54598 54621 54644 54507 54530 54553 54576 54599 54622 54645 54508 54531 54554 54577 54600 54623 54646 54509 54532 54555 54578 54601 54624 54647 54510 54533 54556 54579 54602 54625 54648 54511 54534 54557 54580 54603 54626 54649 54512 54535 54558 54581 54604 54627 54650 54513 54536 54559 54582 54605 54628 54651 54514 54537 54 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities, however, did not agree on this issue with the appellant, as according to them the appellant was not entitled to exemption from integrated tax since the phrase 'duty of customs' at serial no. 2 of the Exemption Notification, includes both the basic customs duty as also integrated tax. Thus, according to the Customs Authorities, the appellant was required to pay integrated tax, in addition to the basic customs duty, on the fair cost of repairs and the cost of insurance and freight charges, both ways. The Commissioner disallowed the integrated tax exemption claimed by the appellant and integrated tax was levied on the fair cost of repairs and the cost of insurance and freight charges. It is against the aforesaid order that the appellant had earlier filed appeals before the Tribunal. The appeals were allowed by the Tribunal by order dated 02.11.2020 in InterGlobe Aviation Ltd. vs. Commissioner of Customs, New Delhi 2020 (43) G.S.T.L. 410 (Tri. - Del.) holding that the appellant would be entitled to exemption from payment of integrated tax under the Exemption Notification on re-import of repaired parts/aircrafts into India. 4. Before adverting to the reasons assigned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uage of any Notification is unambiguous, the plain meaning has to be assigned to such unambiguous language; and (iv) Integrated tax is not a duty of customs and, therefore aircrafts/ parts on re-import after repairs overseas are eligible for full exemption from integrated tax under the Exemption Notification. 6. The Division Bench, after referring to sections 2(15), 12(1) of the Customs Act and sub-sections (1), (7) and (9) of section 3 of the Customs Tariff Act, 1975 the Tariff Act and to the judgments of the Supreme Court in Prestige Engineering (India) Limited vs. Collector of C., Excise, Meerut 1994 (73) E.L.T. 497 (S.C.), Collector of Customs, Madras vs. Indian Organic Chemicals Limited 2000 (118) E.L.T. 3 (S.C.) and M/s. Unicorn Industries vs. Union of India and others 2019 (370) E.L.T. 3 (S.C.) and the judgment of the Bombay High Court in Ceat Tyres of India Limited vs. Union of India 1992 (57) E.L.T. 221 (Bom.) observed: (i) Though the expression duty of customs has not been defined under the Exemption Notification but it can only have that meaning which has been assigned to the meaning of 'duty' under section 2(15) of the Customs Act. It would, therefore, mean the ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs, integrated tax and compensation cess are three different entities. Above all, all the three, namely, duty of customs, integrated tax and compensation cess have been used in the main body of the same Exemption Notification. ***** 48. The inevitable conclusion that follows from the aforesaid discussion is that the absence of mention of integrated tax and compensation cess in column (3) under serial no. 2 of the Exemption Notification would mean that only the basic customs duty on the fair cost of repair charges, freight and insurance charges are payable and integrated tax and compensation cess are wholly exempted." (emphasis supplied) 9. The appeals were allowed by the Tribunal by a decision dated 02.11.2020 and the operative part of the order is reproduced below: "50. Thus, for all the reasons stated above, it is not possible to sustain the impugned orders upholding the assessments made on the 346 Bills of Entry. The 346 orders passed by the Commissioner (Appeals) are, accordingly, set aside and it is held that the Appellant is entitled to exemption from payment of integrated tax under the Exemption Notification on re-import of repaired parts/ aircrafts into I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods re-imported after their export for repairs. This clarification was issued basis the recommendation made by the GST Council in its 43rd Meeting held on 28.05.2021. It states that the matter was placed before the GST Council in view of the decision rendered by the Tribunal on 02.11.2020 in InterGlobe Aviation and that the GST Council recommended that a suitable clarification, including any clarifictory amendment, if required, may be issued for removal of any doubt to clarify the decision of the GST Council that re-import of goods sent abroad for repairs attracts integrated tax and cess. The Circular provides that the clarifictory amendment was being issued to give effect to the recommendations made by the GST Council. It would be appropriate to reproduce the said Circular dated 19.07.2021 and it is as follows: "Circular No. 16/2021-Customs ***** Government of India Ministry of Finance Department of Revenue (Central Board of Indirect Taxes & Customs) ***** New Delhi, dated 19th July, 2021 ***** Subject: Clarification regarding applicability of IGST on repair cost, insurance and freight, on goods reimported after being exported for repairs, on the recommendatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, while examining the request to make available the credit of ITC paid on aircraft engines and parts exported for repairs and later reimported, the leviability of IGST on such imports, on the cost of repairs, insurance and freight charges, was affirmed. In fact, this was never disputed in first place and the request was to allow credit of the IGST so paid. Similarly, while examining the question of GST rate on maintenance, repair and overhauling (MRO) services in respect of aircraft, aircraft engines and other components and parts, the leviability of IGST on such re-imports was again affirmed by the GST Council in its 39th meeting, making it explicitly clear that such goods reimported after repair from outside India attract IGST on the repair, freight and insurance value. In the said discussion, the IGST levied on such goods re-imported after being exported abroad for repairs was a significant factor considered by the GST Council while deciding the rate on MRO services. The above deliberations of the GST Council leave no doubt that the Council had consciously recommended for levy of IGST and cess, albeit at the repair, insurance and freight cost instead of the entire value of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals, considered the Amendment Notification dated 19.07.2021 as also the Circular dated 19.07.2021 issued by the CBIC and observed that a conjoint reading of the two would make it clear that Explanatory Note 'd' is clarificatory in nature and hence would have retrospective effect. The relevant portions of the order of the Commissioner are reproduced below: "5.4 From this, it is abundantly clear that the intent of the GST Council, the supreme Constitutional body for making policy in respect of GST, has always been to levy IGST on such imports. In fact, this intent flows from the fact that such imports were subjected to Additional Duty of Customs also prior to introduction of GST in terms of Notification No. 94/96-Cus dated 16.12.1996. It is also evident that the GST Council has made its intent clear on several occasions. In light of this. I respectfully note that the impugned goods shall be liable to integrated tax and the exemption from the same is not available to them. Since position of law and legislative intent has been made abundantly clear by the GST Council itself, the cited judgments of Hon'ble Tribunal are distinguishable and I respectfully follow the clarification issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative intent is paramount and any interpretation which goes against such intent has to be negated. In the case at hand, the legislative intent has been made amply clear by the Circular No 16/2021Cus dated 19.07.2021. This leaves no scope in interpreting that explanation 'd' in Notification no. 45/2017-Cus as added by Notification No 36/2021Customs dated 19.07.2021 has to be considered to have retrospective effect. 5.11 In view of above discussion and findings, I have not reasons to differ from the impugned assessments wherein IGST has been levied on impugned imports as it is in accordance with the legislative intent." (emphasis supplied) 15. Shri B.L. Narasimhan, learned counsel for the appellant assisted by Ms. Jyoti Pal and Ms. Anjali Singh made the following submissions: (i) The issue as to whether the phrase 'duty of customs' as mentioned under serial no. 2 of the Exemption Notification includes integrated tax has been settled by the Tribunal in the decision rendered on 02.11.2020 in InterGlobe Aviation and subsequent decisions in Interglobe Aviation Ltd. vs. Commissioner of Customs; Spice Jet Limited vs. Commissioner of Customs (General), New Delhi 2021 (1) TMI 663 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation has created a new and additional liability of integrated tax on the re-import of goods, which was not payable under the un-amended Notification, as interpreted by the Tribunal in InterGlobe Aviation. Thus, once the amendment creates a new liability it cannot have retrospective effect. In this connection reliance has been placed on the judgment of the Supreme Court in Sedco Forex International Drill. Inc. and others vs. Commissioner of Income Tax and another 2005 (11) TMI 25-SC; and (vii) While interpreting an Exemption Notification, what is relevant is the text and the language employed in the Notification and not the intention of the Government or the authority issuing the Exemption Notification. In this connection reliance has been placed on the Constitution Bench judgment of the Supreme Court in Hemraj Gordhandas vs. H.H. Dave Assistant Collector of Central Excise & Customs 1978 (2) E.L.T. J 350 (S.C.) 16. Shri S.K. Rehman, learned authorized representative appearing for the department, however, supported the impugned order and made the following submissions: (i) The Exemption Notification dated 30.06.2017 refers to 'duty of customs' and not 'duty of customs leviabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct stipulates that the rates at which duties of customs shall be levied under the Customs Act have been specified in the First and Second Schedules. Section 3 of the Tariff Act provides for levy of additional duty equal to excise duty, sales tax, local taxes and other charges. 19. Section 25 of the Customs Act deals with power to grant exemption from duty. It is reproduced below: "Section 25. Power to grant exemption from duty. - (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions to be fulfilled before or after clearance as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. (2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from the payment of duty, under circumstances of an exceptional nature to be stated in such order, any goods on which duty is leviable. (2A) The Central Government may, if it considers it necessary or expedient so to do fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing entry in column (3) of the said Table. 21. The main body of the Exemption Notification refers not only to duty of customs leviable thereon which is specified in the First Schedule to the Tariff Act, but also to integrated tax and compensation cess, but column (3) of the Table accompanying the main Notification against serial number 2 refers to only 'duty of customs' on the fair cost of repairs carried out with insurance and freight charges. 22. It is for this reason that the Division Bench of the Tribunal in InterGlobe Aviation held that the expression duty of customs occurring in the column (3) of the Table at serial number (2) of the Exemption Notification would only mean the duty of customs leviable under the Customs Act as have been specified in the First and Second Schedules to the Tariff Act and not to integrated tax, which is levied under section 5 of the Integrated Tax Act. 23. Learned authorized representative appearing for the Department, however, submitted that some relevant facts could not be pointed out to the Tribunal when the arguments were advanced before the Bench in InterGlobe Aviation. In this connection, learned authorized representative pointed out, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e important facts could not be placed before the Tribunal in InterGlobe Aviation and, therefore, it should be reconsidered; and the second is that the Amendment Notification, though issued on 19.07.2021, would have retrospective effect from the date the Exemption Notification was issued on 30.06.2017. The contention, therefore, is that the appellant would have to pay the integrated tax also for the period from 30.06.2017 upto 19.07.2021, which otherwise was not leviable under the un-amended Exemption Notification. The Commissioner (Appeals) has accepted this contention of the department, which decision of the Commissioner (Appeals) has been assailed in these appeals. 29. The first contention of the department has been considered in the earlier part of this order. 30. To examine whether the Exemption Notification dated 19.07.2021 can have retrospective effect, it would be necessary to examine the provisions of sub-sections (1), (2A) and (4) of section 25 of the Customs Act. While sub-section (1) gives power to the Central Government to exempt generally, either absolutely or subject to such conditions as may be specified in the notification, goods of any specified description from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government i.e. 19.07.2021. The Amendment Notification dated 19.07.2021 cannot, therefore, have retrospective effect. 30. This view finds support from the judgment of the Meghalaya High Court in Border Trade & Chamber of Commerce, Moreh Town vs. Union of India and others 2017 (4) TMI 142 - Meghalaya High Court The High Court held that if any explanation is inserted in a notification for the purpose of clarifying the scope and applicability, the same can be issued only within one year of the date of issuance of the principal notification, as contemplated under sub-section (2A) of the Customs Act and since the amending notification issued under sub-section (1) does not provide anything otherwise, it would come into force on the date of issuance and not before. The relevant portion of the judgment of the High Court is reproduced below: "Thus, as per Sub-section (2A) of Section 25 ibid., if any explanation was to be inserted in the notification for the purpose of clarifying the scope and applicability, the same was required to be issued within one year of the date of issuance of the principal notification. Obviously, the notification as issued on 27.01.2017 is not the on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Act, which meaning was already implicit. The Courts have repeatedly held that in such a situation it is necessary to first consider the meaning of the provision to which Explanation is added without such Explanation, and then compare the same with the meaning given by the added Explanation. If the result is same, then alone the Explanation can be considered to be clarificatory in nature and given a retrospective effect from the inception of the original provision. The provision sought to added cannot be presumed to be clarificatory merely because the provision attached to Notification bears the nomenclature such as 'it is clarified' or 'for the removal of doubts'. It has to be determined, in each case, whether the provision is clarificatory, basis the test laid down by the Courts. 36. In the present case, the Exemption Notification, before its amendment on 19.07.2019, provided for payment of 'duty of customs' on the repair value of the re-imported goods. The Tribunal, in the decision rendered on 02.11.2020 in InterGlobe Aviation, held in very clear terms that the phrase 'duty of customs' referred to in the condition against serial number 2 would not include i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force. But if it changes the law it is not presumed to be retrospective irrespective of the fact that the phrases used are 'it is declared' or 'for the removal of doubts'. There was and is no ambiguity in the main provision of section 9(1)(ii). It includes salaries in the total income of an assessee if the assessee has earned it in India. The word "earned" had been judicially defined in S.G. Pgnatale [1980] 124 ITR 391 by the High Court of Gujarat, in our view, correctly, to mean income "arising or accruing in India". The amendment to the section by way of an Explanation in 1983 effected a change in the scope of that judicial definition so as to include with effect from 1979, "income payable for service rendered in India" When the Explanation seeks to give an artificial meaning to "earned in India" and bring about a change effectively in the existing law and in addition is stated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has been completed at loss. The same being in the nature of a substantive amendment would be prospective, in the absence of any indication to the contrary *****" (emphasis supplied) 40. In Union of India & Ors. vs. M/s Martin Lottery Agencies Ltd. 2009 (5) TMI 1 - Supreme Court, the Supreme Court held: "24. ***** The explanation, in our opinion, cannot be said to be a simple clarification as it introduces a new concept stating that organizing of the lottery is a form of entertainment. ***** The Explanation so read appears to be a charging provision. It states about taxing need. It can be termed to be a sui generis tax. If it is a different kind of tax, the same may be held to be running contrary to the ordinary concept of service tax. It may, thus, be held to be a stand alone clause. A constitutional question may have to be raised and answered as to whether the taxing power can be segregated. If by reason of the said explanation, the taxing net has been widened, it cannot be held to be retrospective in operation. No doubt, the explanation begins with the words `for removal of doubts'. Does it mean that it is conclusive in nature? In law, it is not. It is not a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively. iii) An explanation/clarification may not expand or alter the scope of the original provision. iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively." 42. The Bombay High Court and the Delhi High Court have also examined this position. 43. In Greatship (India) Ltd. vs. Commissioner of Service Tax, Mumbai 2015 (39) STR 754 (Bom.), the Bombay High Court examined whether the Notification dated 27.02.2010 was clarificatory in nature or whether it resulted in a substantive change in law and made the following observation: "19. From the analysis of the aforesaid judgments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Steamship Co. Ltd., [(1992) 196 ITR 917] is a decision of the Calcutta High Court. ***** The Court held that the retrospectivity need not be confined to the period after 1-4- 1974, because, the Explanation was clarificatory in nature, intended to clear up any doubt or ambiguity as to the true meaning of the relevant provision. Therefore, this meaning was held as the true meaning governing the provision for the assessment year 1972-73 also. At page 935 the Court held: ***** It is no doubt true that, ordinarily, a statute, and particularly when the same has been made applicable with effect from a particular date should be construed prospectively and not retrospectively. But this principle will not be applicable in a case where the provision construed is merely explanatory, clarificatory or declaratory. It cannot be disputed that the object of the Explanation is to explain the meaning and intendment of the Act itself." ***** 29. In the instant case, the Explanation 2 in question, actually purports to be a provision defining the concept of entertainment expenditure, by including a few kinds of expenditures within its scope. Only because a provision attached to a section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its issue by the Central Government for publication in the Official Gazette. 47. Explanation (d), as would be seen, merely clarifies clause (i) of the Amendment Notification dated 19.07.2021. When both clause (i) and Explanation (d) are read together, the same meaning is arrived at. However, when Explanation (d) is compared with the un-amended Exemption Notification, different meanings come out. 48. Learned authorized representative appearing for the department, however, placed emphasis on the use of the word 'substituted' in clause (i) of the Amendment Notification dated 19.07.2021 and submitted that this would mean that it should be given retrospective effect. To substantiate this submission, learned authorized representative placed reliance upon the decision of the Supreme Court Indian Tobacco Association. 49. It is not possible to accept this submission advanced by the learned authorized representative appearing for the department. In the main body of the Amendment Notification dated 19.07.2021, it has been specifically stated that 'in exercise of the powers conferred by section 25(1) of the Customs Act, the Government makes the following amendments in the Notification of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment on the decision of the Tribunal in OM Fragrances is misplaced. In paragraph 22 of the decision, the Tribunal observed that since no substantive right had been taken away nor any penal consequences had been imposed and only an obvious mistake was sought to be removed, the amendment would be retrospective in nature. The relevant paragraph 22 of the decision of the Tribunal in OM Fragrances is reproduced below : "22. These decisions would not help the appellant as they deal with amendment by substitution. In any case, the Supreme Court also made it clear that in such a situation the amendment would be retrospective since no substantive right had been taken away nor any penal consequences had been imposed and only an obvious mistake was sought to be removed. In the present case, if the contention of learned authorized representative appearing for the department is accepted, the respondent would be subjected to higher rate of duty than what was prevailing at that time the search was conducted." 52. In the present case, as noticed above, the Amendment Notification creates a new liability in the form of integrated tax to be borne by the appellant. It is not an amendment which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f customs' would not include integrated tax. The Circular also notes that the GST Council in its 43rd Meeting recommended that a suitable clarification, including any clarificatory amendment, if required, may be issued for removal of any doubt to clarify the decision of the GST Council that re-import of goods sent abroad for repairs attracts integrated tax and cess on the value equal to the repair value, insurance and freight and the Amendment Notification dated 19.07.2017 had been issued to give effect to the decision of the GST Council. 58. The contention of learned counsel for the appellant is that retrospectivity to the Amendment Notification dated 19.07.2021 is neither borne out from the meeting of the aforesaid GST Council or the Circular dated 19.07.2021 and in any case intendment has not be considered while examining the text of a notification. 59. The contention advanced by the learned counsel for the appellant deserves to be accepted. There can be no doubts that while interpreting an Exemption Notification, it is the text and the language employed in the Notification that is relevant and the intention of the Government or the authority issuing the Notification would, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behind the two notifications is to encourage the actual manufacturers of handloom cloth to switch over to power-looms by constituting themselves into co-operative societies. But the operation of the notification has to be judged not by the object which the rule-making authority had in mind but by the words which it has employed to effectuate the legislative intent. Applying this principle we are of opinion that the case of the appellant is covered by the language of the two notifications dated July 31, 1959 and April 30, 1960 and appellant is entitled to exemption from excise duty for the cotton fabrics produced for the period between October 1, 1959 to April 30, 1960 and from May 1, 1960 to January 3, 1961. It follows therefore that the appellant is entitled to the grant of a writ in the nature of certiorari to quash the order of the Assistant Collector of Central Excise of Baroda dated November 26, 1962 and the appellate order of the Collector of Central Excise dated November 12, 1963." (emphasis supplied) 61. This proposition was reiterated by the Constitution Bench of the Supreme Court in Commissioner of Customs (Import), Mumbai vs. Dilip Kumar & Company 2018 (361) ELT 577 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also been noticed by the Tribunal in the decision rendered on 02.11.2021 in InterGlobe Aviation. 64. The submission advanced by the learned counsel also deserves to be accepted. In paragraph 45 of the decision of the Tribunal in InterGlobe Aviation, the following observations were made by the Tribunal : "45. In this connection it would also be relevant to refer to the entries at serial no. 1 of the Exemption Notification. Serial no. 1 specifically refers to what types of duties or taxes are leviable under different situations. There is a specific reference to integrated tax in column (3) in connection with serial no. 1 (d) and to integrated tax and compensation cess in connection with serial no. 1(e). There is, therefore, enough intrinsic evidence in the Exemption Notification itself to show that integrated tax cannot be understood as duty of customs in the Exemption Notification." (emphasis supplied) 65. The aforesaid discussion leads to the inevitable conclusion that the Amendment Notification dated 19.07.2021 cannot be said to be retrospective in nature. Findings to the contrary recorded by the Commissioner (Appeals) in the impugned orders on the basis of the Circular d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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