In Re : M/s. Shree Vishwakarma Engineering Works
GST
2018 (6) TMI 517 – AUTHORITY FOR ADVANCE RULINGS, GUJARAT – 2018 (14) G. S. T. L. 124 (A. A. R. – GST), 2018] 2 GSTL (AAR) 83 (AAR)
AUTHORITY FOR ADVANCE RULINGS, GUJARAT – AAR
Dated:- 5-2-2018
ADVANCE RULING NO. GUJ/GAAR/RULING/2018/2 (IN APPLICATION NO. Advance Ruling/SGST&CGST/2017/AR/6)
GST
Mr. R.B. Mankodi, Member And Mr. G.C. Jain, Member
For The Applicant : Shri N.N. Patel, Advocate
RULING
The applicant M/s. Shree Vishwakarma Engineering Works is engaged in the assembling and manufacturing of musical instruments known as electrically operated drum with bell and zalar. The applicant has submitted that they are purchasing various components for assembling of musical instrument. The applicant had installed lathe machine, drill machine and welding machine which are mainly used for preparing body and machining work. Thereafter, different parts are manually assembled. Accordingly, as per applicant, the use
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
of GST Tariff provides musical instruments, parts and accessories of such articles. The Chapter 92 provides various kinds of musical instruments which are subject to tax under the GST Act. The Chapter 92 also provides the 'Indigenous handmade musical instrument' subject to NIL rate of GST. They submitted that the entry of musical instrument under the VAT Act and as provided under Chapter 92 of the GST Act are identical and hence according to them the exemption granted under the VAT Act is continued even under the Goods and Service Tax Act, 2017. They requested that the disputed item known as electrically operated drum with bell and zalar be held as covered under Chapter 92 of the GST Tariff applicable at NIL rate of tax.
4. The applicant made further written submissions in support of their claim of classification of the item electrically operated drum with bell and zalar as an indigenous handmade musical instrument. They submitted that the Chapter 92 of GST Tariff provides for musical
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
t is an instrument created or adapted to make musical sound. In principle any object that produces sound can be consider a musical instrument. It is through purpose that the object becomes a musical instrument”. Accordingly, the disputed item manufactured by the applicant is musical instrument as covered under Chapter 92 of the GST Tariff.
6. The applicant submitted that the second requirement is that the musical instrument should be indigenous. The term indigenous as defined in Cambridge Advance Dictionary means “Naturally existing in a place of country rather than arriving from another place”. Further, as per Oxford Dictionary, indigenous means “originating or occurring naturally in a particular place; native”. The disputed item 'electrically operated drum with bell and zalar' is manufactured by the applicant at his place of business. Accordingly, the item manufactured by the applicant is an indigenous musical instrument.
7. The applicant submitted that the third requirement is tha
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
d is to be determined by following the test of common parlance or commercial parlance and relied on the judgment of Hon'ble Supreme Court in the case of M/s. Indo International Industries, reported at 45 STC Page 359. They submitted that the disputed item of the applicant is Page 2 of 5 popularly known as musical instrument and is also played in every Hindu Temple during performing morning and evening Aarti. Accordingly, as per common parlance principle, the disputed item is indigenous handmade musical instrument and hence the rate of tax applicable would be NIL rate of tax. They further relied on the following judgments
(a)
Atul Glass Industries (p) Ltd.
–
63 STC Page 322 (S.C.)
(b)
Indian Aluminium Cables Ltd.
–
64 STC Page 180 (S.C.)
(c)
Alpine Industries,
–
131 STC Page 9 (S.C.)
9. The applicant further submitted that the Government of India, Ministry of Finance (Department of Revenue), vide Notification No. 28/2017-Central Tax (Rate) dated 29.09.20
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
dated 28-6-2017 issued under the Central Goods and Services Tax Act, 2017 and corresponding Notification issued under the Gujarat Goods and Services Tax Act, 2017, which provided exemption to 'Indigenous handmade musical instruments' of Chapter 92.
12.1 It is observed that the Explanation (iii) and (iv) of the Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017 provides as follows :-
“Explanation. – For the purposes of this notification, –
(i) ……
(ii) ……
(iii) “Tariff item”, “sub-heading” “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 (51 of 1975).
(iv) The rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975 (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.”
12.2 Further, H
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
doubt that the HSN Explanatory Notes are a dependable guide even while interpreting the Customs Tariff.”
13.1 As per the submissions of the applicant, for manufacture of product 'Electrically operated Drum with Bell and Zalar', they prepare body by using Lathe Machine, Drill Machine and Welding Machine, wherein different parts are manually assembled. In the said product, Drum, Bell and Zalar are used which are played in a rhythm by mechanical operation of electric motor run by electricity. The resultant product is distinctly known in the market as 'Electrically operated Drum with Bell and Zalar'.
13.2 The description of goods covered by Heading 9208 of the First Schedule to the Customs Tariff Act, 1975, is as follows :-
“Musical boxes, fairground organs, mechanical street organs, mechanical singing birds, musical saws and other musical instruments not falling within any other heading of this Chapter; decoy calls of all kinds; whistles, call horns and other mouth-blown sound signa
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ral Tax (Rate), dated 28-6-2017 was amended vide Notification No. 28/2017-Central Tax (Rate), dated 22.09.2017, whereby, inter-alia, in Sl. No. 143, entry “Indigenous handmade musical instruments as listed in ANNEXURE II”, has been substituted and 'Annexure – II' containing list of 134 indigenous handmade musical instruments, was inserted. Thus, the exemption vide Sl. No. 143 of the said Notification is now admissible only to those indigenous handmade musical instruments of Chapter 92 as are listed in Annexure-II of the said Notification.
14.2 As per the submissions of the applicant, for manufacture of product 'Electrically operated Drum with Bell and Zalar', they prepare body by using Lathe Machine, Drill Machine and Welding Machine, wherein different parts are manually assembled. In the said product, Drum, Bell and Zalar are used which are played in a rhythm by using electricity and electric motor. The resultant product is distinctly known in the market as 'Electrically operated Dru
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =