TMI Blog2012 (8) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... y is linked with the demand of duty, which will depend on the outcome of the reconsideration. In these circumstances, the case is remanded to the Original Authority to re-examine the above aspects - CUSTOMS APPEAL NOs.C/A/374, 352, 358 AND 375/2010 - - - Dated:- 25-7-2012 - SHRI S.K.GAULE, DR. D.M.MISRA, JJ. DR. S.CHAKRABORTY,ADVOCATE ASSISTED BY S/SHRI S.K.MEHTA A.BISWAS, BOTH ADVOCATEs, SHRI S.K.SINHA, SHRI P.PATANKAR, SHRI S.BHATTACHARJEE, SHRI S.SARKAR, SHRI D.K.ACHARYAYA, SPL. COUNSEL FOR THE REVENUE Per Shri S.K.Gaule Heard both sides. 2. Revenue as well as Noticees are in appeal. The Appeals are directed against common Order, having common issue and therefore, the Appeals are disposed of by a common Order. 3. Briefly stated facts of the case are that in the follow-up of investigation in the case of one cruise vessel Pandav-4 which was seized on 01.06.2009, Officers of Customs, SRD Unit, found that the Tug Century Star-1 which had towed the vessel Pandav-4 had also towed a Barge during the month of November, 2008. The Tug Century Star-1 had towed the Barge Star-3002 from Mayu River, Sittwe, Myanmar and the Barge was detached at Sagar Road on 19.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge was lying. The quotation dated 05.03.2009, the following specification in respect of the Barge Star-3002 was disclosed as the Barge was made of Steel, having length:92mtrs., breadth:24mtrs., depth:5.5mtrs. and Draft 1.20mtrs . The Department initiated proceedings on the ground that the Barge entered into India towed by the Tug Century Star-1 and was detached at virtual jetty at Sagar Point. The Barge had been off-loaded at Sagar Point from the Tug Century Star-1 which not an approved place of off-loading of cargo/import-goods and on the ground that the Dumb Barge Star-3002 was entered illegally into India without declaration. Accordingly, the Barge was seized and proceedings were initiated against various persons. Learned Commissioner adjudicated the case and ordered as under:- (a) I order to confiscate the Dumb Barge Century Star-3002 u/s 111(a),(d),(f),(g) and (h) of CA 62. However I give an option to redeem the Barge on payment of redemption fine of Rs.30,00,000/- (Rupees thirty lakh only) under section 125(1) of CA 62. (b) I order to confiscate Tug Century Star-1 u/s 115 of CA 62. However I give an option to redeem the Tug on payment of redemption fine of Rs.75,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts from India to Myanmar. The Tug carried the goods to Myanmar and, since in the meanwhile the Barge was also salvaged and as agreed upon in the Charter Party Agreement, on return voyage, the Barge was towed by the Tug to India from Yangong, Myanmar. vii) On November 17, 2008 permission was sought by the Shipping Agent, B. Ghosh Co. Pvt. Ltd, from the Director of Marine, Kolkata Port Trust to tie up the Barge, which was towed from Yangong by the Tug and which was due to arrive at 1600 hrs. on that date, at Virtual Jetty, Sagar. Such permission was allowed. viii) The Barge thereupon was detached from the Tug and the Tug left for Kolkata Port where import manifest was filed in respect of the Tug on November 21, 2008. ix) Thereafter, in March 2009, the Barge was taken to M/s. Maeksin Shipping Pvt Ltd s, private shipyard at Sagar, for repair, where it was seized on July 16, 2009 by the Customs authorities. 4.1. The contention is that from the above facts, it is clear that the Barge was imported into India in the year, 2006 pursuant to the permission of DG-Shipping s order dated 19.10.2006. Thereafter, it was converted for coastal run by virtue of the permission granted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25(2) of the Act. The contention is not correct, since no duty is payable on the Dumb Barge in view of Serial No.352 of Notification No.21/2002-Cus. dated 01.03.2002. 5. The contention of the Appellant, M/s. Atlantic Shipping Pvt. Ltd. is that they were only agent of M/s. Geostar Surveys India Pvt. Ltd. for the purpose of time chartered voyage and as such, were not responsible for declaring barge towed by the Tug Century Star-1 in the IGM. Therefore, they are not liable for penal action. 6. The contention of the Appellant, M/s. Babaji Shivram Clearing and Carriers Pvt. Ltd. is that they are acting only on behalf of M/s. Geostar Surveys. At the outset, they had declared in the e-mail to M/s. Ghose Others that M/s. Geostar Surveys are not, in any way, responsible for clearance of the Barge having towed by the Tug. Therefore, they could not have acted contrary to the directions therein and therefore, penalty ought not to have been imposed against them. 7. The contention of M/s. B.Ghose Co. Pvt. Ltd. is that they were not the Steamer Agent in this case, but only acting as the Protecting Agent on behalf of their Principal. Therefore, the primary responsibility of Master of Ves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying cargo to Chittagong was also granted to the Tug and the Barge by the Jurisdictional Customs Authorities. In such circumstances, it is settled law for movements/voyages in or out of the country the Barge, in any event, becomes a foreign going vessel and cannot be said to be imported goods . This Tribunal in the case of Nobel Asset Co. Ltd. vs. CC(Prev.), reported in 2006(205) ELT 901(T), which was affirmed by the Hon ble Bombay High Court, held in paras 6(d)(ii), 6(h) and 6(k) as follows:- 6.?We now proceed to deal with the issues raised before us. (a) . (b) . (c) . (d) As regards Demands of duty, it is found: (i) .................................................................................................... (ii) However, no duty has been demanded in respect of all such movements ostensibly, on the basis of the practice referred to above in the above case. Demands are restricted on three such movements. Viz- (i) The first demand is for the year 1992 when the rig came back from Bahrain after repairs, while it was owned by Essar; (ii) The second is when the rig was brought back from international waters by Noble and deployed at platform NE on 13-12-1997; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not include goods which have been cleared for home consumption. Therefore once any vessel e.g. the rig in the present case, is brought into India and assessed to duty and cleared for home consumption it would cease to be imported goods. Subsequently, if it acquires the characteristic of foreign going vessel, is not liable for payment of customs duty for the movements in and out of the country. In this regard, the definition of foreign going vessel is relevant. The definition states that foreign going vessel includes inter alia any vessel engaged in fishing or any other operation outside the territorial waters of India. The Bombay High Court in the case of Amarship Management Pvt. Ltd. v. Union of India - 1996 (86) E.L.T. 15 (Bom.) has already held that rig is a foreign going vessel. This judgment of the Bombay High Court has not been over-ruled in the case of Pride Forma v. Union of India, 2002 (148) E.L.T. 19 (Bom.), as was contended by the ld. Counsel appealing on behalf of the revenue. The Hon ble Bombay High Court in the case of Pride Forma was only concerned with the interpretation of the provisions of Section 86 87 of the Customs Act and had accordingly, in para 32 of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collecting the duty on day one and refunding the same on day five or earlier. It is possibly for this reason that the practice of non-levy of duty on vessels on their subsequent movements in and out of India evolved, i.e., once such vessel had been assessed to duty and cleared for home consumption, further levy Drawback liabilities not called for. (e) (f) . (g) (h) As regards the liability of the rig to confiscation for the movement of the rig from Bahrain in September 1992, the Commissioner has found that Essar had not followed the Customs formalities by filing Bills of Entry and had also not discharged duty liability on the value of repairs. As we have observed above, no duty liability was attracted on the repair charges in view of the fact that the rig had already been assessed for duty once in 1987 and had thereafter ceased to be imported goods having acquired the characteristic Port clearance for foreign going vessel. Since the rig had ceased to be goods and would be a vessel, there could be no requirement for filing of a Bill of Entry for inward movement of such vessel. At the highest, the only requirement under the Customs law could have been to file an import m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise that the rig was goods, for import of which a Bill of Entry was required to be filed and other formalities relating to unloading etc. had to be complied with. For reasons recorded above, we hold that the rig ceased to be imported goods after its assessment and clearance in the year 1987 and thereafter it acquired the characteristic of a foreign going vessel and therefore it did not require any Shipping Bill or Bill of Entry to be filed for its inward or outward movement from India. The requirement of IGM or EGM are not attracted as admittedly no export or import cargo was being carried on board the rig. We find that the reasons assigned by the Commissioner for ordering confiscation of the rig under Section 111 are similar to the ones assigned by him in respect of the movement of the rig in September 1992. These reasons have already been held to be unsustainable in our findings above confiscation arrived cannot be thus upheld. 9.1. We find that the Appellants have claimed that the Dumb Barge was imported into India in the year, 2006 pursuant to permission of DG-Shipping s order dated 09.10.2006. Thereafter, the Barge was converted for coastal run by virtue of the permission gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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