TMI Blog2015 (1) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... rity did not know the nature of the vessels under importation. Even in the Lloyds register which is mentioned in the Indian Register of Shipping, the vessel is shown as offshore tug/supply ship. Therefore, if the department wanted to classify the vessel under CTH 8904, they should have done the same when the bills of entry were filed along with other import documents for the purposes of assessment which they failed to do. In the appellant's own case the lower appellate authority had classified the anchor handling tug/supply vessel under CTH 89019000 as a cargo vessel. This order of the lower appellate authority was not challenged by the Revenue and had attained finality. In these circumstances, the appellant could have entertained a bona fide belief that the goods under importation merited classification under CTH 8901. Appellant had furnished the requisite particulars as envisaged under the law at the time of assessment of the goods. The vessels were also boarded and examined by the Customs and therefore, it cannot be contended that the appellant had suppressed any information. Since the show-cause notices have been issued only in 2012 in respect of the imports made in 2008 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively, under CTH 8904 and confirmed differential duty demands of ₹ 9,08,68,858.87 and RS.62,88,264/- respectively by invoking the extended period of time. Further he has imposed the following penalties. S.No. Name of the person on whom penalty imposed Penalty (in Rs.) under Section of Customs Act 114A 112 (a) 114AA Vessel Sea Cheetah 1 Hind Offshore Pvt. Ltd. 9,08,68,858.87 - - 2 Mr. Hasan A Kadir Mapari, Manager (Operations) of Hind Offshore - 5 lakhs 5 lakhs 3 M/s Falcaon Cargo Services (I) Pvt. Ltd., CHA - 5 lakhs 10 lakhs 4 Mr. Devraj M Salian, Executive (Operations) of CHA firm - 5 lakhs 5 lakhs Vessel Sea Venture 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no suppression or mis-declaration of facts on the part of the appellant. 3.3 The learned Counsel submits that the appellant had imported anchor handling tug cum supply vessels earlier also and vide order-in-appeal No. 34/2006/MCH/AC/VB/05 dated 19/01/2006, the appellant authority had upheld the classification of Anchor handling tug-cum-supply vessel under CTH 89019000, eligible for duty exemption under Notification No. 21/02-Cus dated 01/03/2002. The order of the appellate authority had not been challenged by the Revenue and had, thus, become final. Therefore, the appellants were under the bona fidebelief that anchor handing tug/supply vessel imported by them is correctly classifiable under CTH 8901. 3.4 The learned Counsel further submits that the vessel imported by the appellant is a supply vessel with anchor handling capabilities. A supply vessel by its very nature is capable of carrying goods and passengers. In addition, it can also undertake other functions such as anchor handling, towing, etc. Merely because the vessels under import have the capability of anchor handling/towing, it does not cease to be a supply vessel. In the present case, the Sea Cheetah has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The learned Consultant submits that in the case of Sea Cheetah , the demands have been made under Section 28 and therefore, the question of time limit would arise whereas in the case of Sea Venture , the vessel was seized and provisionally released and subsequently, the vessel was held liable to confiscation under Section 111(m). On confiscation, option to pay fine in lieu of confiscation was granted under Section 125(1). In a case where goods are confiscated and allowed to be redeemed, the person who is liable to pay fine is also liable to discharge the differential duty liability. Since no time limit has been prescribed for demand of duty under Section 125(1), the differential duty demand in the case of Sea Venture would sustain. Even in respect of Sea Cheetah , it is his contention that the importer appellant had misdeclared the goods and had not furnished the full details and therefore, invocation of extended period of time is justified. 5. We have carefully considered the submissions made by both the sides. 5.1 First we take up the issue of time limitation. In the present case, we find that at the time of original importation and assessment, the appellant had f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement or suppression of facts. Interpreting the provisions of section 28 of the Customs Act, the hon'ble apex court held that the main body of the section contemplates ordinary default in payment of duties and leaves cases of collusion or wilful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso. The hon'ble apex court further held that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. In the present case we find that the appellant had furnished the requisite particulars as envisaged under the law at the time of assessment of the goods. The vessels were also boarded and examined by the Customs and therefore, it cannot be contended that the appellant had suppressed any information. Since the show-cause notices have been issued only in 2012 in respect of the imports made in 2008 and 2009, the demands are clearly time barred and therefore, the question of confirming differential duty would not arise at all. As regards the argument that since one of the vessels were seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X
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