GUJARAT AUTHORITY FOR ADVANCE RULING

GOODS AND SERVICES TAX

D/5, RAJYA KAR BHAVAN, ASHRAM ROAD,

AHMEDABAD - 380 009.

(IN APPLICATION NO. Advance Ruling/SGST&CGST/2023/AR/17)

Brief facts:

M/s. Imtiyaz Kaiyum Barvatiya, Madina Masjid Road. Soni Bazaar. Upleta, Rajkot. Gujarat- 360 490, is engaged in the business of sale and distribution of Marine Distress Signals, Emergency Position Indicating Radio Beacon [EP1RB| and Search and Rescue Transponder |SART], Ship Security Alert System |SSAS|, Navigation and Communication Equipmem |NAVCOM|. They are registered under GST and their GSTIN is 24AN1PB3775R1ZL.

The applicant imports various goods/spares, which are supplied on ships and it is the applicant's contention that this equipment forms an essential part of the ship and makes the ship 'sea worthy'. The goods are imported by the applicant on payment of IGST . The detailed list of equipment as provided at Annexure I A, is reproduced below viz

Annexure I-A

The applicant has stated that the application includes sample copies of illustrative bill of entry for such imports marked as Annexure l-B, I- C, I-D, 1-E:. I-F; & I-G. However, on examining the application, it is observed that no such copies are enclosed with the application.

4. The applicant further states that they charge GST on parts/equipment supplied by them on the ship by classifying it under the same tariff head under which the goods are imported. The applicant discharges GST liability on supply based on rates applicable io such tariff entry. For instance, a "Standard Solas Model" is classified under tariff head "8479" captioned as "Ship Spares" and is hence taxed at the rate of 18%.

5. The applicant has further stated that they receive the purchase orders for such parts/spares/equipment from customers wherein the customer mention the applicable GST rate at 5% on the reasoning that these goods form part of ship. The customers feel that the goods are covered under Sr. No. 252 of notification No. 1/201 7-Central Tax which covers parts of goods of headings 8901,8902, 8904, 8905, 8906, 8907.

6. Based on the information from customers, market trend, critical nature of goods, the subject goods being essential part of ship to make it sea worthy and also the fact that it is legally obligatory for ships to have fitment/installation of all such spares and equipment to qualify as seaworthy, the applicant feels that the goods are parts of various types of ships and vessels falling under headings 8901, 8902, 8904, 8905, 8906, 8907 & are therefore, eligible for benefit of entry no. 252 of notification No. 1/2017-Central Tax.

6.1 Chapter headings 8901,8902, 8904, 8905. 8906 and 8907, covers the following viz

• Heading 8901 is for cruise ships, excursion boats, ferry boats, cargo ships, barges and similar vessels for transport of persons or goods.

• Heading 8902 applies to fishing vessels, factory ships, other vessels, etc.

• Heading 8904 is for tugs and pusher crafts.

• Heading 8905 covers Light vessels, Fire floats, dredgers and other vessels.

• Heading 8906 and 8907 is for other vessels arid floating structures.

7. The applicant further states that

• such goods cannot be classified as spares separately in their own right; that they are becoming non-competitive in the market if they do not avail the benefit of' entry no. 252 of notification No. 1/2017-Central Tax(Rate) which specifically covers parts of goods of various types of the ships and vessels covered under headings 8901,8902, 8904, 8905, 8906, 8907;

• that they are selling equipment and parts/spares of critical nature and are mandated by IMO (International Maritime Organization), which are essential to establish the sea worthiness of'a ship and therefore cannot be simply regarded as "spares" or equipment;

• that in terms of explanation to notification No. 01/2017-CGST dated 27.06.2017 the classification of goods should be as per the rules of classification enshrined in the Customs Act, 1962;

• that they wish to rely on rule 3(a) of the General Rules for Interpretation [GRI] (inadvertently mentioned as Customs Valuation Rules by the applicant) to argue that the heading which provides the most specific description shall be preferred to headings providing a more general description;

• the meaning of the term "spares" incorporates a wide ambit of products and would lead to a generic classification of goods, while on the other hand the classification as parts of the ship, would be more specific and could be attributed as the products relevant to a particular industry, namely the shipping industry and would therefore provide clarity in identifying the same;

• The applicant wishes to rely on the judgement of the Hon'ble SC in the case of M/s. A.S. Moloobhoy & Sons wherein the Hon'ble Court declined to interfere with the order passed by the Tribunal, which held that these imports of equipment and spares should be treated as one for "the purpose of ship repair".

8. The applicant has raised the following question for advance ruling viz

To decide as to whether the supply of goods [as listed in Annexure I-A of this ARA application is classifiable as "parts of goods of headings 8901,8902, 8904, 8905, 8906, 8907" under entry 252 of Schedule I of GST Notification No. 01/2017-Central Tax (Rate) dated 28.6.2017 as amended and is liable to GST @ 5% (CGST-2.5% and SGST-2.5%) or IGST @ 5% or not.

9. Personal hearing was granted on 28.5.2024 wherein Shri Imtiyaz Kaiyum Barvatiya, Shri Yadnesh Vasudeo and Shri Onali M Modi, CA appeared on behalf of the applicant. On being asked it was informed that they are now availing the benefit of the notification ibid & are discharging IGST @ 5%. They also relied upon the AAR ruling in the case of M/s. A S Moloobhoy Private Limited dated 18.7.2018 passed by the Maharashtra Authority for Advance Ruling.

Revenue's Submission:

10. Joint Commissioner, CGST Rajkot Commissioncrate vide letter No. GEXCOM/ TECH/ MISC/ 1206/ 2024- TECH- O/o COMMR- CGST- RAJKOT submitted its comments as follows:

On the plain reading of circular No. 52/26/2018-GST dated 9th August. 2018, it appears that supply of goods as parts of the goods of headings 8901, 8902, 8904, 8905. 8906, 8907, will be classifiable under Entry No. 252 of Schedule-I of GST Notification No. 01/2017-Central Tax (Rate) dated 28th June 2017 and will be liable to GST @ 5% (CGST- 2.5% and SGST-2.5%) or classifiable under Entry No. 252 of Schedule 1 of GST Notification No. 01/2017-Integrated tax (Rate) dated 28th June, 2017 and liable to IGST @ 5%; that otherwise it would be classifiable to their respective tariff head and GST rate would be applicable as per their respective tariff head.

11. Owing to change in the Member of the GAAR, a fresh personal hearing was granted on 30.7.2024. The applicant vide his email dated 29.7.2024, enclosed copies of bills of entry and further stated that they did not wish to attend the hearing and requested to pronounce the ruling on the basis of earlier submissions and hearing.

Discussion and findings

12. At the outset, we would like to state that the provisions of both the CGST Act and the GGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the GGST Act.

13. We have considered the submissions made by the applicant in their application for advance ruling as well as the submissions made during the course of personal hearing. We have also considered the issue involved, the relevant facts & the applicant's submission/interpretation of law in respect of question on which the advance ruling is sought.

14. The relevant extracts of the Customs Tariff Act, 1975,HSN, notification, etc., is reproduced below for ease of reference v/z

• Notification No. 1/2017-Central fax dated 28.6.2017 Schedule I - 2.5%

(i) The phrase "unit container" means a package, whether large or small (for example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a pre-determined quantity or number, which is indicated on such package.

(ii) The expression 'pre-packaged and labelled' means a 'pre-packaged commodity' as defined in clause (l) of section 2 of the Legal Metrology Act, 2009 (1 of 2010) where, the package in which the commodity is pre-packed or a label securely affixed thereto is required to bear the declarations under the provisions of the Legal Metrology Act, 2009 (1 of 2010) and the rules made thereunder.

(iii) "Tariff item" "Heading" "Sub-heading" and "Chapter" shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (Act No.51 of 1975).

(iv) The rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975 (Act No.51 of 1975), including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, so far as may be, apply to the interpretation of this notification.

• THE GENERAL RULES FOR THE INTERPRETATION OF IMPORT TARIFF

Classification of goods in this Schedule shall be governed by the following principles:

1. The titles of Sections, Chapters and sub-chapters are provided for ease of reference only; 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:

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 falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:-

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable.

(c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

• HSN explanatory notes

Chapter 89

Ships, boats and floating structures

The Chapter also includes

(A) Unfinished or incomplete vessels (e.g., those not equipped with their propelling machinery, navigational instruments, lifting or handling machinery or interior furnishings),

(B) HuIls of any material.

Complete vessels presented unassembled or disassembled, and hulls, unfinished or incomplete vessels whether assembled or not) are classified as vessels of a particular kind, if they have the essent. character of that hand of vessel In other cases, such goods are classified in head: 8906

Contrary to the provisions relating to the transport equipment falling in other Chapter of Section XVII. This chapter excludes all separatley presented parts (other than hulls) and accessories of vessels or floating structures, even if they are clearly identifiable as such part, and accessories are classified in the appropriate headings elsewhere in the Nomenclature. for example

(I) The parts and accessories specified in Note 7 to Section XVII.

(2) Wooden oars and paddles (heading 44.21).

(3) Rops and cables of textile material (heading 56.07).

(4) Sail (heading 63.06).

(5) Mats, hatchways, gangways, rails and bulkheads for ships or boats and pans of hulls, having the did character of metal structures of heading 73.08

(6) Cables of iron or steel (heading 73.1 2)

(7) Amenors of non or steel (heading 73.16)

(8) Propellers and paddle wheels (heading 84.87).

(9) Rudders (headings 44.21, 73.25, 73.26, etc ) and ether steering or rudder equipment for ships or be s (heading 84.79).

15. from the facts, we find that the applicant imports the items mentioned at Annexure l-A supra, the applicant is primarily engaged in supply of the imported goods which he claims to be an essential part of the ship and makes the ship 'sea worthy'. These goods are imported by the applicant on payment of IGST. During the course of supply post importation, the applicant charges GST on parts/equipment classifying it under the same tariff head as mentioned in the import documents, the applicant is before this Authority primarily on the ground that his customers are of the opinion that notwithstanding the classification of the goods during the course of import, the said goods when supplied to these customers would fall within the ambit of chapter heading 8901, 8902, 8904, 8905, 8906 & 8907 and thereby be eligible for benefit of Sr. No. 252 of notification No. 1/201 7-CT (R) dated 28.6.2017.

16. The applicant in Annexure-2, paragraph 4, has provided an example in respect of the imported product viz "Standard Solas Model", wherein the goods are classified under chapter heading 8479 as 'ship spares' and he discharges GST on the said supply @ 18%. further, vide their email dated 29.7.2024, they have enclosed certain bills of entry, the details of which are as under viz

17. As is already slated, the applicant imports the goods. During the importation, the goods are classified by Customs under the Customs Tariff Act, 1975, and the applicant discharges the relevant customs duties including the IGST, which is applicable. The applicant willingly discharges the duties involved, which leads to the inference that he has agreed to the classification of the imported goods as done by the proper officer of Customs.

18. On the aforementioned background, we find that the applicant is before us with an averment, that though the goods have been classified by Customs under various tariff items [as is mentioned in column 4 of the table above in respect of the bills of entry, the copies of which has been submitted vide email dated 29.7.2024] he now feels that consequent to the importation while undertaking further supply of the said goods, it should be classified under the heading 8901, 8902. 8904, 8905, 8906 & 8907 and thereby be eligible for benefit of Sr. No. 252 of notification No. 1/2017-CT (R) dated 28.6.2017. Availing the benefit of the said exemption notification, will make the supply leviable to GST @ 5%.

19. The question before us, therefore, is whether a change in classification is permissible. This has to be seen in background of a pointed question to the authorized representative during the course of personal hearing to whether the goods were sold as such, to which he replied in affirmative.

20. We do not agree with the averments raised by the applicant that the classification can be changed by the applicant post importation at the stage of further supply of the said goods. The classification of the imported goods would not change i.e. remain the same, more so since

(a) the applicant without any protest agreed with the classification done by Customs and discharged the duties; and

(b) classification under GST is based on Customs Tariff Act, 1975, in terms of explanation (iii) and (iv) of notification No. 1/2017-CTR dated 28.6.2017;

(c) that there is no change in the character of the goods supplied by the applicant to the one imported.

21. Our aforementioned finding is substantiated by the below mentioned judgements viz

• M/s. Ashwani Homeo Pharmacy [2023 LiveLaw (SC) 397] CA No. 9525/2018, wherein the Hon'ble Supreme Court held as follows :

The applicable principles, as noticed from the decisions in BPL Pharmaceuticals and Vicco Laboratories (supra) remain that change of classification cannot be countenanced merely on the ground of coming into force of different tax structure without showing that the product has changed its character.

• Pooja Hardware Pvt. Ltd. [2019 (365) LLI 816 ( fri-Mum), wherein the Hon'ble Tribunal held as follows:

2. Brief facts of the case are thatM/'s. Pooja Hardware Pvt. Ltd. (for short, the appellant company) is the importer of aluminium profiles and other hardware materials and imports the said goods mostly from China and Europe, through the Nhava Sheva Port and the Air Cargo Complex. Mumbai. Based on specific intelligence that the said appellant had been importing aluminium profiles from China, classifying the same under Chapter Heading No, 7604, instead of appropriately classifying under 8302 of CIA, 1975, the department investigated into the matter and recorded statements from various persons, including Shri Divyesh Madhukant Shah, Managing Director of the appellant company (the appellant No. 2 herein). On the basis of investigation, the department initiated show cause proceedings against the appellant, seeking for confirmation of duly demand and for imposition of penalties. The mutter wav adjudicated vide the impugned order dated 9-5-2016. wherein the declared classification of aluminium profiles under CTH 7604 29 90 was rejected and the same way reclassified under CTH 8302 10 90 of CTA, 1975.........

5........Pursuant to summon, the appellant No. 2 had stated that the aluminium profiles imported are finished item and sold as such to the customers and that no further processing is done on the imported goods and that the appellant company dispatched those goods directly, in the condition as is being imported. The said statement furnished by the appellant No. 2 clearly shows that the disputed goods were intended for specific use. i.e. for furniture fittings. Thus, the imported goods inquestion. should appropriately be classifiable under C TH 8302 10 90. instead of CTHl 7604 29 90, as claimed by the appellant in as much as the former chapter only deals with the fittings or accessory of furniture. which the appellant had imported in this case.

Even otherwise, it is a trite law that classification of a product is to be done by consignor only, that classification cannot be changed or questioned at consignee's end as has been held in the case of Steel Authority of India Ltd. / (2022) 382 ELT 10 (SC) ]

The applicant states that the goods/spares which consequent to its imports are supplied on ships are mostly essential part of ship to make it sea worthy. As far as this claim goes, we are also mindful of the HSN explanatory notes of chapter 89 under which the applicant wants his goods to be classified after the imports are made under various tariff items as is mentioned in para 13 above, which states that contrary to the provisions relating to the transport equipment falling in other Chapters of Section XVII, this Chapter excludes all separately presented parts (other than hulls) and accessories of vessels or floating structures even if they are clearly identifiable as such. Such parts and accessories are classified in the appropriate headings elsewhere in the nomenclature. The relevant portion of the explanatory notes is already reproduced in paragraph supra.

23. The applicant has relied upon the advance ruling dated 18.7.2018 in the case of M/s. A S Moloobhoy Private Limited ARA No. GST-ARA-14/2018-19/B-71 during the course of personal hearing. The reliance on the said ruling is not tenable since it is applicable only to M/s. A S Moloobhoy Private Limited in terms of section 103 of the CGST Act, 2017. We further find that the applicant in his application has relied upon the order dated 26.4.2019 of the Hon'ble Supreme Court in the case of M/s Chidambaram Ship Care (P) Ltd and Others Civil Appeal No. 31 15-31 17/2015. On going through the order, it is observed that the Hon'ble SC dismissed the departmental appeal holding that they found no reason to interfere with the Order of the Hon'ble CESTAT dated 10.3.2005, in Pinal Order No. 448-450/2005 in Appeal No. C/370-372/2002-MAS. The Hon'ble CLSTAT in its order dated 10.3.2005, had framed the question to be decided as to whether the subject equipment's which were declared as 'ship spares' for repairs of ocean going vessels are covered by the description of goods under SI. No. 227 of table annexed to notification No 23/1998-Cus. As is evident, the facts of the case & the question raised being different, the reliance placed by the applicant is not tenable, as far as the present dispute is concerned.

24. In view of the foregoing, we find that as far as classification of the goods when supplied by the applicant as is mentioned in Annexure l-A is concerned, it would not change i.e. the classification would remain same as mentioned in the bill of entry filed before Customs. The goods when supplied by the applicant, post importation would be classified under the same chapter, heading, sub heading and tariff item under which it was classified by Customs and on which IGST was discharged during the course of import of the said goods.

25. In view of the foregoing, we pass the following ruling

RULING

The supply of goods [as listed in Annexure l-A of this ARA application is classifiable under the same chapter, heading, sub heading and tariff item under which the goods were imported and the rate of the supply of said goods would be in terms on the rates applicable to such tariff entry under various tariff items.