TMI Blog2014 (4) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ade stationary due to the restrictions imposed by the local laws. It will be a strange situation to classify a vessel under CTH 8901 if used for making trips to open sea, with a night halt arrangement in the sea, but classify the same vessel under CTH 8903 if used in a predominantly stationary position. In view of the above observations, we are of the opinion that Casino vessel POG imported by the importer is principally designed to carry passengers and has been correctly assessed under CTH 8901 - classification of POG and its assessments have been correctly made and it is held that any value addition will not have effect on duty when the vessel of CTH 8901 imported by the appellant stood exempted under an exemption notification - Decided in favour of assessee. - Appeal No.C/10948, 10965/2013-DB - Order No.A/10367-10368/2014 - Dated:- 12-3-2014 - MR.M.V. RAVINDRAN AND MR. H.K. THAKUR, JJ. For the Appellant : Shri K.K. Anand, Adv. For the Respondent : Shri Raju, Joint Commissioner (D.R.) , Shri K. Sivakumar, Addl. Commissioner (A.R.) JUDGEMENT Per: H.K. Thakur 1. These appeals have been filed by the appellants against the OIO No.10/Commissioner/2012, dt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is done on the bill of entry, the same can be opened by the Revenue subsequently invoking extended period, by way of raising the demand because assessment finally made cannot be reviewed if not challenged by the Department. Ld.Advocate relied, inter alia, upon the following case laws to support his argument:- a) Priya Blue Industries Vs CCP [2004 (172) ELT 145 (SC)] b) CCE Kanpur Vs Flock (India) Pvt. Ltd. [2000 (120) ELT 285 (SC)] c) CC (Imports) Mumbai Vs Lord Shiva Overseas [2005 (181) ELT 213 (Tri-Mum)] d) Vitterssee Export Import Vs CC (EP) Mumbai [2008 (224) ELT 241 (Tri-Mum)] e) Brakes India Ltd Vs CC Chennai [2008 (221) ELT 300 (Tri-Che.)] (iii) That classification of POG was correctly made under CTH 8901 as the same is a category of Passenger Ship, (Special Trade Passenger Ship, according to Section 3(24), (25), (47B) and (47C) of the Merchant Shipping Act 1958 and as per the registration certificates issued by the competent authorities in India, and cannot be classified under 8903 because vessels for pleasure or sports under 8903 are the vessels for pleasure or sport for the private use of the owner and not for commercial use as in the case of POG. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p sea. (viii) That valuation of POG has been correctly declared as per Para 3.1 of the agreement between the importer and the supplier and that the contract was C F and no extra amount has neither been repatriated to the seller or brought on record by the investigation. That even in interim reply to the show cause notice at Page 152/Vol. I, the appellant had explained that the vessel was initially to be purchased from its original owner M/s Bediford Entertainment Corporation, Houston, USA for 350 thousand US dollars and the draft agreement was entered into for the same. However, the original owner of the vessel wanted full payment in advance. Accordingly, the draft agreement was prepared. However, upon enquiring with the Banks of India the purchaser was informed that as per the RBI Rules only 100 thousand US dollars could be given as advance and the balance amount could be paid to the supplier only on receipt of the goods in India. Hence the vessel was purchased through M/s Wave Master Ship Supplies Pte. Ltd. who were brokers in the same purchase. The draft agreement was suitably modified with mainly 2 changes. The purchase price was increased from 350 thousand dollars to 450 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) Ld.A.Rs. relied upon certain computer print outs downloaded from a website to establish that POG was always designed to be a Casino vessel for pleasure and games and was rightly classified under CTH 8903 by the adjudicating authority. (v) On undervaluation of POG, it was argued that as per contract entered between M/s Wave Master Ship Supplies Pvt.Ltd. Singapore and the appellant, the vessel was purchased and taken over on as is where is basis. That fact of freight paid by the appellant was well within their knowledge and was correctly added to the assessable value. (vi) That importer has deliberately suppressed the fact of the imported vessel being Casino vessel for pleasure and that it was never intended to be used for the purpose envisaged under CTH 8901, as held by adjudicating authority in Para 27 of the OIO. That there was willful mis-declaration and suppression of facts, pertaining to payment of freight and insurance charges and thus extended period was correctly invoked. 5. Heard both sides and perused the case records. The issue involved in the present appeals is mainly regarding correct classification of a vessel Pride of Goa (POG) imported by the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT Mumbai in the case of CCE Vs Waterways Shipyard Pvt.Ltd. (supra) CGU Logistics Ltd Vs CC (I) Mumbai (supra) and Hal Offshore Ltd Vs CC Mumbai (supra), it has to be seen as to what is the nature of vessel POG. Whether it is a Passenger Ship or a Pleasure vessel . The words Passenger , Passenger Ship and Pleasure Vessel have neither been defined under the Customs Tariff Act nor in the HSN explanatory notes. The words Passenger and Passenger Ship Special Trade Passenger and Special Trade Passenger Ship have been defined under Section 3(24) and 3(25), 3(47B) and 3(47C) of the Merchant Shipping Act 1958 as follows:- 3. Definitions - In this Act, unless the context otherwise requires, - (24) Passenger means any person carried on board a ship except - (a) a person employed or engaged in any capacity on board the ship on the business of the ship; (b) a person on board the ship either in pursuance of the obligations laid upon the master to carry shipwrecked, distressed or other persons or by reason of any circumstances which neither the master nor the character, if any, could have prevented or forestalled; (c) a child under one year of age; (25) Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (bb) in the case of a vessel owned by a body corporate, used only for sport or pleasure and on which the persons on board are employees or officers of the body corporate, or their immediate family or friends; and (ii) on a voyage or excursion which is one for which the owner does not receive money for or in connection with operating the vessel or carrying any person, other than as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion; or (b) any vessel wholly owned by or on behalf of a members club formed for the purpose of sport or pleasure which, at the time it is being used, it used only for the sport or pleasure of members of that club or their immediate family, and for the use of which any charges levied are paid into club funds and applied for the general use of the club; and (c) in the case of any vessel referred to in paragraphs (a) or (b) above no other payments are made by or on behalf of users of the vessel, other than by the owner. 5.5 Above definition of a pleasure vessel gives support to the argument made by the Advocate of the importer that a vessel for pleasure or sport should be meant for perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. 8. The words in pursuance of an Order of Assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained. (ii) Collr. of Central Excise, Kanpur Vs Flock (India) P. Ltd. 2000 (120) ELT 285 (SC) 10.Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries and all other parts, machineries equipment and accessories inside (838-Casino Machines and Casino-Game Tables Accessories, Surveillance Systems including 15 Monitors 5 Recording Devices, Casino safe Deposit Systems, Weather Dock Chairs Tables). The above bill of entry was assessed by the assessing officer, cleared by concurrent audit and countersigned by the proper officer. Even the classification declared by the importer was underlined and specifically a handwritten mention of exemption of Sr.No.352 of exemption Notification No.21/2002-Customs, dt.01.03.2002 was made on the Bill of entry. The details like vessel being a Casino vessel has completely been declared by the importer while giving the description of the goods. Under the circumstances, it cannot be held that there was any suppression, much less suppression with intention to evade Customs duty, on the part of the importer to willfully claim a wrong classification. The onus of making a correct classification including availment of a correct exemption notification, lies upon the assessing officers. The duty of the importer was to give the correct and detailed description which has been discharged. Imported go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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