TMI Blog2015 (1) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a quotation to know the price of new identical barge and it shows that the new barge will cost USD 25 Million from the manufacturer. This evidence has also been discarded by the adjudicating authority. Impugned order is without justification as held by the decision in the case of Titan Medical Systems Pvt. Ltd. (2002 (11) TMI 108 - SUPREME COURT OF INDIA). We also find that in the case of CCE v. Wander Ltd. (2003 (8) TMI 48 - SUPREME COURT OF INDIA) the Hon’ble Apex Court held that the issue of valuation of barge seized have no relevance or significance if the same is exempted and there is no duty liability. - value declared by the appellant in the bill of entry is true and correct. Therefore, the impugned proceedings are not warranted. - The essentiality certificate issued for the barge in question is for “Swiber Victorious” therefore, the impugned order quo rejecting the essentiality certificate is set aside. As the value declared by the appellant is USD 23.5 Million is true and correct value therefore, we hold that the appellant is entitled for the benefit of exemption at Sl. No. 214 of Notification No. 21/2002, dated 1-3-2002. - Decided in favour of assessee. - C/86874, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to their 100% subsidiary, Victorious LLC showing the price at which insurance cover was obtained. Therefore, the Revenue was of the view that while importation of the vessel, the appellant has under-valued the price of the vessel therefore, the said vessel is liable for confiscation and liable to pay duty on the enhanced value denying the benefit of Notification No. 21/2002, dated 1-3-2002. The vessel was seized and the same was allowed to be released provisionally under Section 110 of the Customs Act, 1962. The appellants approached this Tribunal against the order of provisional release. Considering the submissions made by the appellants, this Tribunal came to a conclusion that for provisional release of the vessel, the appellants are required to execute a bond for ₹ 2,37,08,76,525/- and to undertake not to use the vessel except for the purpose of executing the contractual work of petroleum operations for ONGC till the final adjudication or on completion of investigation and not re-export the vessel except with the permission of CC (Import), Mumbai. The vessel was provisionally released to the appellants and thereafter on completion of the work assigned to the appellants, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Systems Pvt. Ltd. v. CC - 2003 (151) E.L.T. 254 (S.C.). It is further submitted that the essentiality certificate pertains to the vessel Swiber Victorious which is mentioned on the face of the essentiality certificate. Therefore, it cannot be said by any stretch of means that the essentiality certificate does not relate to the subject barge. Once the eligibility certificate has been issued to the appellants for exemption, the issue of valuation of barge ceases to have any relevance or significance whatsoever as held by the Hon ble Apex Court in the case of CCE v. Wander Ltd., 2003 (157) E.L.T. 3 (S.C.). 6.1 It is further submitted by the learned Counsel that the Bill of Sale by Swiber Engineering Ltd. (SEL) to VLLC was not a commercial transaction as VLCC being 100% equity holding of SEL. The value declared was only an estimated value as the barge had been taken by the appellants on charter high basis. That US$ 23.5 million was a commercially acceptable value which corroborates the fact that Pacific Crest actually sold the barge to SEL at the said price, the quotation for an identical barge manufactured by the same manufacturer was also for USD 23.5 million and the Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel prays that the impugned order should be set aside and the appeals be allowed with consequential relief. 7. On the other hand, the learned Spl. Counsel for the Revenue opposed the contentions of the learned Counsel and submits that the controversy in the matter is whether the Essentiality Certificate in question is relates to the Barge or not? The Essentiality Certificate submitted at the time of clearance of Barge was not relatable to the Barge in question inasmuch as the value of US$ 23.5 millions mentioned in the said certificate did not tally with its actual value which is US$ 42.5 millions. To support this contention, the adjudicating authority has relied on the invoice issued on the following evidences :- (a) As per the Portfolio Overview Second Quarter 2009 report of ICON Leasing Fund Twelve LLC., Singapore, it was found that the Accommodation Work Berge Swiber Victorious was purchased by Victorious, LLC, a Marshall Island company and controlled by wholly owned subsidiary company ICON Victorious, LLC, from Swiber for USD 42,500,000; (b) The subject sale was effected by M/s. Swiber Engineering Ltd., Singapore, to Victorious, LLC in March 2009, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962, the barge is liable for confiscation. In these terms, he submits that the adjudicating authority has rightly passed the impugned order and the same is required to be upheld. 8. Considered the submissions made by both the sides. 9. In this case, the appellant imported one Barge and filed Bill of Entry on 18-1-2011 for import on re-export basis claiming benefit of exemption under Sl. 241 of Notification No. 21/2002-Cus., dated 1-3-2002. The said notification gives exemption on production of Essentiality Certificate issued by the DGH certifying the fact that the said barge is required for petroleum operations under petroleum exploration licences issued to the ONGC. The appellant has obtained the said essentiality certificate from the DGH which shows that the name of the barge in question as Swiber Victorious . The learned Commissioner has held that the essentiality certificate produced by the appellant does not pertain to the barge; this is totally erroneous as the certificate mentioned the Swiber Victorious as barge in question. The only reason for denying the benefit of notification is that the value of the barge as shown in the invoice does not matc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority. If the new barge is available on US$ 25 Million at relevant time, as the impugned barge is a old one therefore the declared value of US$ 23.5 Million is required to be accepted by all means. We further find that the DGH has not raised the issue of value for issuance of the said essentiality certificate therefore, the certificate issued by DGH cannot be discarded by the adjudicating authority. 10. In view of the above, we observed that the impugned order is without justification as held by the decision in the case of Titan Medical Systems Pvt. Ltd. (supra). We also find that in the case of CCE v. Wander Ltd. (supra) the Hon ble Apex Court held that the issue of valuation of barge seized have no relevance or significance if the same is exempted and there is no duty liability. The case law relied upon by the learned Spl. Counsel for the Revenue has no relevance to the facts of this case to determine the value of exempted goods. In fact, we are holding that the value declared by the appellant in the bill of entry is true and correct. Therefore, the impugned proceedings are not warranted. 11. The essentiality certificate issued for the barge in question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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