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M/s. Sadiq Brothers Versus Commissioner Of Customs

2016 (6) TMI 432 - KERALA HIGH COURT

Legality of proceedings - Import of deep sea fishing trawlers on 26.02.1998 but finding the same to be not seaworthy, sent it for breaking up - Non-compliance of provisions contained in notification No. 133/87 - Appellant stated that by that time, notification No. 133/87 was rescinded by notification No. 47/96 dated 23.07.1996, so the liability under notification No. 133/87 was not in existence from 23.07.1996. - Held that:- Clause (c) of Section 159A is attracted only in a case where a righ .....

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iability thereunder could not have been acquired or incurred, to attract clause (c) of Section 159A. This, therefore, means that Section 159A would not save the proceedings initiated against the appellant under notification No. 133/1987. If that be so, the whole proceedings initiated against the appellant are without jurisdiction. - Decided in favour of appellant - Customs Appeal No. 23 of 2009 - Dated:- 31-5-2016 - ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. For the Appellant: Sri. P.V. Jyoth .....

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enue. 3. Briefly stated the facts of the case are, that two deep sea fishing trawlers of foreign origin were imported by M/s. Kerala State Co-operative Federation for Fisheries Development Ltd. ('Matsyafed' for short). Subsequently, Matsyafed invited tenders for the disposal of the trawlers and being the successful tenderer, the trawlers were sold to the appellant on 26.02.1998. According to the appellant, finding the trawlers to be not seaworthy, they sent it for breaking up. Later, sho .....

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y the order was upheld, but the fine and penalty alone were reduced. This is the background in which the appeal is filed. 4. The first contention raised before us was with respect to the very legality of the proceedings that were initiated against the appellant. According to the learned counsel for the appellant, by notification No. 262/58 the ocean going vessels, other than the vessels imported to be broken up, were exempted from the payment of customs duty leviable thereon. It is stated that a .....

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orted for the purpose of breaking up; and b) any such goods (that is to say vessels and other floating structures), if subsequently are intended to be broken, the importer shall present fresh Bill of entry to the Collector of Customs, and thereupon such goods shall be chargeable with the duty which would be payable on such goods as if such goods were entered for home consumption under Sec. 46 of the Customs Act, 1962 (52 to 1962), on the date of the presentation of such fresh Bill of Entry to th .....

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. 47/96 dated 23.07.1996, the liability under notification No. 133/87 was not in existence from 23.07.1996 and that therefore, the proceedings initiated by the respondent resulting in the impugned order was illegal. 6. However, this contention of the learned counsel for the appellant was sought to be resisted by the learned Standing Counsel appearing for the respondents by relying on Section 159A of the Customs Act 1952, which was introduced by the Finance Act, 2001 with retrospective effect fro .....

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ed. Therefore, it is stated that proceedings impugned are unassailable. 7. We have considered the submissions made. A reading of notification No. 133/1987 shows that subsequent transfer of the vessel for breaking up fastened the liability on the importer to present a fresh bill of entry to the Collector of Customs and thereupon the vessel shall be chargeable with duty in the manner as provided in the notification. However, this notification was rescinded by notification No. 47/96 dated 23.07.199 .....

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47/96. Section 159A of the Customs Act, 1962 reads thus: 159-A. Effect of amendments, etc., of rules, regulations, notifications or orders.- Where any rule, regulation, notification or order made or issued under this Act or any notification or order issued under such rule or regulation, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall nota) receive anything not in force or existing at the time at .....

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