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TMI Blog2010 (6) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... for the clearance of communication equipment at GBP 400 (F.O.B) equivalent to Rs. 23,779/- (C.I.F) covered by an Invoice dated 7-1-1992 of M/s. Kelvin Hughes Ltd., H.K. and cleared the equipment for the vessel "M.V. Kashi Sagar" as ship spares. Earlier, the respondent had filed transhipment permit No. 11468 dated 11-12-90 for clearance of another communication equipment valued at BEF 308,640/- (F.O.B) equivalent to Rs. 2,23,856/- (C.I.F) covered by Invoice dated 7-12-90 of M/s. Sait Marine International, Belgium and cleared the equipment for the same vessel as ship spares. The Collector of Customs issued a show-cause notice dated 12-3-93 to the respondent for recovery of Customs duty of Rs. 62,443.65 and Rs. 5,87,845.85 in respect of the eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted that a vessel, in order to be called "foreign-going vessel" must satisfy two tests viz., (i) it must be engaged in the carriage of goods and (ii) must be so engaged in carrying goods from one port in India to any port outside India. It is submitted that, for the purposes of Sections 86, 87 and 90 of the Customs Act, "India" must be understood as including its territorial waters which extends upto 12 nautical miles from the nearest point of low tide along the baseline of India. The appellant further submits that the vessel was plying on coastal run as indicated by the instrument of contract produced by the respondent. It was not necessarily plying along the West Coast only and was sailing all around including the Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty. The Id. SDR, in his rejoinder, points out that the contract in question is dated 4-9-91 and, in any case, it cannot be pertaining to the transhipment of goods obtained by the respondent in December 90. 3. We have given careful consideration to the submissions. In terms of the remand order passed by this bench it was incumbent upon the importer to adduce evidence to the satisfaction of the Commissioner about the "foreign-going" nature (if any) of M.V. Kashi Sagar. The importer produced an agreement dated 4-9-91 before the Commissioner, which was an agreement entered into between the importer and M/s. Land & Sea Overtrans India Pvt. Ltd. Apparently, by this agreement, M/s. Land & Sea. Overtrans India Pvt Ltd. chartered M.V. Kas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y port and Veraval port in Gujarat. In the absence of documentary evidence to the contra from the respondent, we have got to accept the evidence adduced by the department. In respect of the goods covered by the transshipment permit dated 21-1-92, there is no evidence adduced by the respondent to show that the vessel has actually sailed between the Indian territorial waters and Bombay High during the material period. As we have already noted, the burden of proof was on the importer, which has not been discharged successfully by them. Anything contained in the agreement cannot be taken in its face value as evidence of the vessel having sailed between the Indian coastal waters and Bombay High. In the result, M.V. Kashi Sagar is not liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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