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2016 (7) TMI 645 - CESTAT MUMBAI

2016 (7) TMI 645 - CESTAT MUMBAI - TMI - Classification - import of heavy duty crane cum pipe laying ship - self propelled ship or not - classifiable as vessel under CTH 89 05 or not - Held that:- The finding of the Adjudicating Authority that the said vessel LTS 3000 merits classification under chapter 8905 is totally incorrect inasmuch the chapter heading starts with the clause that it covers light vessel, fire floats, dredgers, etc. the navigability of which is subsidiary to the main function .....

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y function or perform other main function in a stationary position. In the case in hand, it is admitted fact that the vessel is continuously moving while laying the pipes and undertaking any operation in relation to the petroleum exploration. - In our considered view, the classification of the vessel LTS 3000 would be correct under 8901 or 8906 but not definitely under 8905 as has been held by the Adjudicating Authority. If the classification of the vessel falls under chapter heading 8901 or .....

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ndent ORDER Per: M.V. Ravindran This appeal is directed against Order-in-Original No. 32/2015/CAC/CC(I) /AB/GR.VB dated 04.06.2015. 2. Since all these appeals are arising out of common order in original they are being disposed of by a common order. 3. The brief facts are pursuant to a specific information that M/s. L&T Sapura Shipping Pvt. Ltd. have imported a heavy duty crane cum pipe laying ship in the guise of self propelled ship with intention to evade huge amount of duty; investigations .....

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is and the Group Appraiser objected to the classification and directed the importer to classify the vessel under CTH 89 05. Thereafter the CHA vide letter dated 15.12.2010 requested to amend the description from permanent import of one unit self propelled ship LTS 3000 with essential spares accessories cons and provisions to MV LTS3000 IMO No.9446843, Built 2010, Indonesia, Type Heavy Lift Pipe Lay Vessel GT-30628T NT-9188T (Temporary import on re-export basis) along with some additional quan .....

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ased. 5. In this case appellant claimed benefit under Sl. No.214 of Notification No.21/2002-Cus as amended which exempts goods specified in List 12 required in connection with petroleum operations undertaken under petroleum exploration licenses or mining leases, as the case may be, issued or renewed after the 1st of April, 1999 as granted by the Government of India or any State Government to the oil and Natural Gas Corporation or oil India Limited on nomination basis with the conditions as enu .....

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d other before DGH. Both these documents were filed by M/s. GAC Shipping (India) PVT Ltd. CHA on behalf of the importer. The Invoice submitted to Customs and DGH though had same number and date, the contents like name of the consignee, CIF value and additional information related to offshore activities were found to be different. Both these invoices were signed by Shri Ashiwini Kumar, CEO of M/s. OIF as well as of M/s. L&TSSPL. (iii) The Bill of Entry was filed on 02.12.2010 and the applicat .....

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ONGC Ltd. And M/s. L&TSSPL, the importer is only a vessel owning company. It is evident from the above conditions that the importer has to be the sub-contractor of licensee. In view of these conditions other than the licensee or Sub-Contractor of the licensee (M/s. ONGC Ltd.) no importer can avail the benefit of duty exemption on the strength of Essentiality certificate. The importer M/s. L&TSSPL is not a bonafide sub-contractor of M/s. ONGC Ltd,. Therefore, benefit of notification 21/2 .....

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petroleum project and it is not relevant as to who is the contractor executing the work on behalf of ONGC. The said vessel was used for petroleum operations. 7. All the appellants contested the show-cause notice on merits as also on various grounds like the ship was ocean going vessel, no penalty is imposable as it is a question of interpretation of the benefits of the notification. The Adjudicating Authority did not agree with the contention raised by the appellants. The Adjudicating Authority .....

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inidhi G., Advocate appeared for the appellant while revenue was represented by Shri V.K. Singh, Special counsel. 9. Ld. Counsel after taking us through the records of the case submits that the issue is regarding denial of benefit of Notification 21/02-Cus on the vessel imported by the main appellant as also the classification of the said vessel. 9.1. It is his submission that ONGC was a licensee of government of India for exploration of oil and gas in the Mumbai High and had by contract dated 1 .....

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pplicable to the main appellants vessel as the said work undertaken by the main appellant is in respect of exploration/petroleum operation of ONGC. He would then take us through the exemption notification. It is his submission that the terms contractor and sub-contractor as indicated in the Notification have not been defined anywhere in the Act as well as in the notification. It is his submission that notification requires three conditions to be satisfied if the exemption is claimed from th .....

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ied by sub-contractor then duty, fine or penalty that may become payable ONGC (which is satisfied by the undertaking as annexed at Page 383 of the Appeal.) 9.2. It is his submission that all the conditions pertaining to benefit of notification were satisfied by the appellant and hence the denial of benefit of notification exempting the said vessel from the payment of customs duty is wrong. It is his submission that the vessel is undisputedly used to carry out offshore petroleum operation by the .....

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dertaken by the contractor under a contract. He would submit that the Revenue has not disputed the fact that L&T has appointed the main appellant as sub-contractor after seeking approval from ONGC by letter dated 31.08.2010. (Annexure 1- Page 78 of the Appeal memo); that appointment of main appellant was in pursuance to clause 5.2.2 of the contract which empowers L&T the main contractor to sub-contract portion of work with certain conditions specified therein; ONGC has accepted the pro .....

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sued by DGH on the basis. It is his submission that this Essentiality Certificate was produced at the time of clearance of the vessel. He would submit that the revenue authorities after initiation of the investigation directed the DGH to cancel the Essentiality Certificate given to L&T. The said Essentiality Certificate was cancelled by DGH which was challenged by the appellant in writ petition before the High Court of Bombay and their Lordships stuck down the cancellation of the certificate .....

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Adjudicating Authority has not appreciated the fact that ONGC never disputed the claim of the main appellant as being bona fide subcontractor; nor disputed the Vessel LTS 3000 was approved by ONGC for their installation activity; that Appellant, being a sub-contractor of L&T was treated as sub-contractor of L&T was treated as a sub-contractor of ONGC by implication and conduct on the part of ONGC. It is also his submission that its general practice of ONGC, the DGH and the Customs Depart .....

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ed that for the extension of the benefit of notification, non-mentioning of the name of the contractor in the agreement cannot be a ground for denying the benefit of exemption and should be allowed based on the Essentiality Certificate issued by the DGH. He would submit that the Adjudicating Authority has not considered this direction of CBEC in its correct prospective and it is settled law that the Adjudicating Authority should follow the circular issued by the CBEC. 9.5. The Essentiality Certi .....

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and wrongly classified the vessel imported by the main appellant under Chapter heading 8905. He submits that the main appellant claimed the classification of the vessel under 8901 or alternatively 8906. 9.7. It is his submission that in terms of the technical specifications of vessel LTS 3000, which he took us through and submitted that it is a self propelled ocean going vessel having capacity to conduct multiple functions to which navigation along with pipe laying being primary functions. The .....

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vessel is required to navigate its way to lay pipes on the ocean bed. It means that navigation is its primary function. Subsequently he would take us through HSN explanatory notes to submit that the classification as proposed by the revenue is incorrect. It is his further submission that the vessel LTS 3000 has a crane and is equipped with pipe laying equipment and is a self-propelled ship, registered under the Merchant Shipping Act, as an ocean going vessel. He would submit that the Indian Regi .....

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ship other than any of the above. He would submit that all these things indicate LTS 3000 is an Ocean Going Vessel and a Cargo ship and hence merits classification under CTH 8901 or 8906 but not under 8905. For this proposition he relied upon the judgment of the Tribunal in the following cases: * HAL Offshore Ltd. - 2014 (303) ELT 119; * J.M.Baxi & Co. 2015 (318) ELT 688; and * CGU Logistic Ltd. v. Commissioner - 2011 (274) E.L.T. 75 9.8. As regards the claim for classification under 8906, h .....

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is no mis-declaration as the vessel was declared self-propelled ship LTS 3000 with essential spare accessories cons and provisions. Since it is undisputed that the vessel is self-propelled ship there is no mis-declaration and confiscation was uncalled for. 10. Ld. Counsel appearing for appellant Shri Sachin Sain after adopting all the submissions made by the ld. senior advocate submits that the entire Order-in-Original is nothing but a verbatim reproduction of show-cause notice and there is no .....

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tally unwarranted as all the actions of the appellant are in compliance with what was required as a employee of ONGC for implementation of the agreement between ONGC and L&T. As regards the affidavit, it is his submission that it has been filed and submitted to DGH, clearly states that L&T is sub-contractor of L&T and never contended that main appellant is a sub-contractor of ONGC. The affidavit did not misguide the DGH. He relies upon the decision of the Tribunal in Schlumberger Asi .....

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GH dated 29.10.2012 wherein the name of the sub-contractor and contractor are clearly mentioned and main appellants name is mentioned as importer, and submits that the list clearly indicates that the vessel is imported are required for petroleum operation undertaken under EEL/ Mining lease granted by the Government of India/ State Government. 11. Ld. Special counsel after taking us through the findings recorded by the Adjudicating Authority and also taking us through the records, grounds of ap .....

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essel is required in connection with petroleum operations undertaken under petroleum exploration licenses or mining leases given to ONGC. It is his submission that the benefit is subject to fulfillment of condition laid down at sl. no. 29 and the Appellant who has imported goods is neither contractor nor sub-contractor of the licensee. He would submit that Shri Sachin Sain, General Manager, (Projects) of ONGC in his statement recorded stated that the ONGC Ltd. was not aware in advance that M/s. .....

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ational FZC, UAE and had remitted full and final payment after due permission from RBI. c. The invoice No. IN/LTS 3000/005 dated 12.11.2010 submitted along with the application for obtaining Essentiality Certificate was different from what was submitted with the Bank and Customs. d. A sub-contractor can be engaged as per the agreement entered between ONGC and L&T; that the said clause at 5.2.2(ii) was never fulfilled by L&T as the main appellant as critical ingredients for appointment of .....

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rpose, he placed reliance on the following judgement:- (a) Jairaj Ispat Vs. CCE, Hyderabad-2001(127)E.L.T. 722 (b) Novapan India Ltd vs. CCE Hyderabad 1994 (73) 769(SC) (c) Golden Dew Tea Factory Vs. commissioner of C.Ex. Coimbatore-2007(219) ELT 362. 11.3. It is his submission that reliance placed by the ld. Counsel on the judgment of Bombay High Court is incorrect as High Court had specifically stated the views expressed by the judgement are prima facie views and it left the issue of deciding .....

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ssions at length by both sides and perused the records. 13. On consideration of the submissions made by both sides and perusal of the records, the following issues needs to be decided by us: i) Whether the impugned vessel i.e. LTS 3000 is classifiable under CTH 8901 or 8906 as claimed by the main appellant or 8905 as held by the Adjudicating Authority. ii) Whether the main appellant is eligible for benefit of Notification 21/02-Cus at Sr.no.214. 13.1. Benefit of Notification 21/02-Cus The Adjudi .....

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ter misconstruing the facts. In order to appreciate the correct position, whether the main appellant is eligible for the benefit of Notification 21/02-Cus in respect of the vessel imported by him, it is required that the undisputed facts needs to be recorded. They are - 1) The vessel LTS 3000 is renewed for conducting petroleum operation as per the agreement entered by ONGC with L&T 2) The said vessel was used for the petroleum operation as per the agreement entered by ONGC. On the backgroun .....

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on or Oil India Ltd. on nomination basis. 29 A plain reading of entry 214 would specifically indicate that the goods which are required in connection with the petroleum operations undertaken under petroleum exploration licences are exempt from payment of duty if they fulfil the condition as mentioned at Condition no. 29. It is undisputed that ONGC are licensee for petroleum operations undertaken under petroleum exploration licences or mining lease post 01.04.1999 granted by the Government of Ind .....

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plain reading of the affidavit filed by the respondent officer i.e. Shri Rajeev Kumar, DGM (E) of ONGC before the Hon'ble High Court in writ petition no. 2980 of 2011 on oath states that - It was pointed out that in the request for issue of essentiality certificate, correct facts had been disclosed i.e. the vessel LTS 3000 is being imported on re-export basis for the purposes of carrying out obligation under the Contract dated 16th October, 2009. Further, in the application besides listing .....

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r the purposes of execution of the contract. This understanding is also fortified/ supported by the affidavit submitted to the Dy. Commissioner of Custom wherein also it was stated that L&T Ltd. i.e. 1st petitioner is our contractor for the MHN process platform and Living Quarter project. (As reproduced from affidavit at page 384 onwards at page 394 & 395 of the appeal memorandum) 13.3. From the above reproduced portion of the affidavit filed by the responsible officer of ONGC before the .....

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able, List 12 and Condition No. 29) Ref: Petroleum operations undertaken under Petroleum Exploration Licenses/Mining Lease issued or renewed after the 1st of April, 99 and granted by Govt. of India/State Govt. to ONGC/OIL (Licensee) on nomination basis. OIL AND NATURAL GAS CORPORATION LTD Operator's Name: OIL AND NATURAL GAS CORPORATION LTD Importer's Name: Land T Sapura Shipping Pvt. Ltd Total CIF Value: INR 7490834074.42 Blocks: PEL-ML-ONGC Contracts Dated: Contract No. MR/OW/MM/MNP-ML .....

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s has reference to said Notification No. 21/2002 Customs dated 01-03-2002 amended vide Notification No. 26/2003-Customs dated 1-3-2003 as per S. No. 214 of the Table, List 12, Condition 29 issued by Ministry of Finance (Department of Revenue), New Delhi. This certificate is valid for a period of six months from the date of issue. 13.4. A plain reading of the Essentiality Certificate as reproduced hereinabove would indicate that the vessel LTS 3000 is required for the petroleum operations underta .....

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ion of notification is that an affidavit has to be filed by ONGC to the effect that the sub-contractor is bona fide sub-contractor of the licensee of the lessee. It is to be seen that ONGC has filed an affidavit dated 19.10.2010 to Dy. Commissioner of Customs, Mumbai regarding that the main appellant is sub-contractor of L&T Ltd. in terms of condition no. 29 of the notification, scanned copy of the same is reproduced: The above said affidavit was accepted by the department while extending th .....

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to the contract entered by them with L&T has accepted the proposal that the main appellant herein is a sub-contractor, which is evident by the affidavit filed by ONGC before the High Court of Bombay also before the Dy. Commissioner of Customs for the satisfaction of condition 29 of the said notification . Such an affidavit cannot be disputed by the revenue based upon the clauses of the agreement. In our view, whether the main appellant is a sub-contractor of ONGC or otherwise, is a dispute .....

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ssioner of Customs as is evident from page 383 of the appeal memo which we reproduce:- To The Deputy Commissioner of Customs, Mumbai UNDERTAKING Sub: Undertaking in terms of Notification 21/02-Cus dated 01/03/2002 as amended by notification no. 26/2003-Cus dt. 01/03/2003 Sl.No. 214 of the table of import MHN- Process Platform & Living Quarters project is awarded to M/s. Larsen & Toubro Ltd., Mumbai on turnkey basis. M/s. Larsen & Toubro Ltd. has engaged L&T Sapura Shipping P. Ltd .....

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e contract MR/OW/MM/MNP-MLQ/16/2008 dated 16.10.2009. Oil and Natural Gas Corporation Ltd. (ONGC) will pay any duties, fines that may become payable in the event L&T Sapura Shipping P. Ltd. does not comply with the terms of Notification 21/02-Cus dated 01.3.2002 as amended by Notification 26/03-Cus dt.01.03.2003 Sl.No. 214 of the table of import. The said undertaking categorically states that the main appellant is a sub-contractor. It is also on record that none of the conditions of the said .....

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oods to be used in connection with petroleum operations under petroleum exploration licence which is undisputedly complied with by the imported vessel LTS 3000. We find strong force in the submission made by the counsel that the terms contractor and sub-contractor have not been defined under Customs Act, nor in the notification or any other statute, in such a situation the meaning needs to be looked into the various dictionaries. On reading the definition of sub-contractor in Black s Law Diction .....

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to be considered from the fact that a clarification was sought from CBEC on the point as to whether each sub-contractor of a contractor is required to enter into contract with the Government of India or his name should figure in the contract agreement signed by the Government of India for availing the benefit of exemption under Notification 21/02-Cus it was clarified by CBEC in a Circular dated 16.05.2013 in para 2.4 which reads as under:- 2.4 Whether each sub-contractor (of a contractor) is re .....

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hat the imported goods have been imported under a contract signed under the New Exploration Licensing Policy, and containing the name of such sub-contractor. 2.4.2 The condition (c)(i) in all the Sl. Nos. of the said notification requires that the importer should produce an EC, which should indicate that the goods have been imported under a contract entered between the Government and the contractor; and it should also contain the name of the sub-contractor. The requirement of containing the nam .....

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sible to include his name in the original contract. 2.4.3 It is, therefore, clarified that non-mention of the name of sub-contractor in the agreement signed between the contractor and GOI cannot be a ground for denying the benefit of the exemption and that the exemption should be allowed based on the EC issued by the DG, Hydrocarbons. 3. The above position may be brought to the notice of formations under your charge. Difficulties, if any, faced in the implementation of the instructions may be br .....

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o very clear in the case in hand. 14. Classification The Adjudicating Authority has decided the classification of the vessel LTS 3000 under 8905. While the appellant has claimed the 8901 or 8906. In order to appreciate the competing tariff heading it is required that the said chapter headings be reproduced:- Tariff item Description of goods Unit Rate of Duty (Std.) (1) (2) (3) (4) 8901 Cruise ships, excursion, boats, ferry boats, cargo ships, barges and similar vessels for the transport of perso .....

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0 - Other : U 10% 8905 90 10 - Floating docks U 10% 8905 90 90 - Other U 10% The finding of the Adjudicating Authority that the said vessel LTS 3000 merits classification under chapter 8905 is totally incorrect inasmuch the chapter heading starts with the clause that it covers light vessel, fire floats, dredgers, etc. the navigability of which is subsidiary to the main function. The understanding of the ld. Adjudicating Authority that vessel LTS 3000 having a crane fitted to it would fall under .....

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the Indian Register of Shipping specifically indicates the vessel is sea going vessel. It is common sense that sea going vessel means a vessel for which navigation is primary function and other activities are secondary. It is also on record and admitted that the vessel LTS 3000 is used for laying the underwater pipes on the ocean sea bed which requires navigation from point to point. The self propelled nature of vessel LTS 3000 is not at all disputed by any of the lower authorities. 15. In our v .....

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d other vessels the navigability of which is subsidiary to their main function; floating docks; floating or submersible drilling or production platforms. 8905 10 00 - Dredgers 8905 20 00 - Floating or submersible drilling or production platforms 8905 90 - Other : 8905 90 10 - Floating docks 8905 90 90 - Other 8906 Other vessels, including warships and lifeboats other than rowing boats 8906 10 00 - Warships 8906 90 00 - Other 4.2 According to? HSN Explanatory Notes, heading 8905 covers vessel whi .....

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, cannot obviously perform the function if it remains in a stationary position. This is material and significant difference in the nature of the function undertaken by Geo Hind Sagar when compared with the vessels of CTH 8905. Further from the contracts entered into with ONGC and NACOR, it is seen that the vessel should possess significant navigational capability to undertake and perform the tasks assigned and there are specific standards laid down in this regard. If the vessel has to undertak .....

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S.C.)] that for resolving any dispute relating to tariff, classification, a safe guide is the internationally accepted nomenclature emerging from the HSN. 4.3 From the various certificates given by the authorities (both in India and abroad) including Indian Registry of Shipping and the professional surveyors who have undertaken the examination and classification of the vessel, the vessel in question is a seismic research vessel. Seismic research is scientific research and therefore, the vessel .....

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survey is to gather reliable data and from the analysis of the data, scientifically valid conclusions can be drawn. Thus collection of data is an integral part of any empirical scientific research and cannot be treated as a separate or distinct activity. The relevant paras from HAL Offshore Ltd.:- 7.9 Now let us see whether there is any merit in the? Revenues case for classifying these vessels under CTH 8905. The said heading covers light vessels, fire floats, dredgers, floating cranes, and ot .....

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nrestricted navigation. In other words, navigation is not subsidiary to their main function. The safety certificate issued by the Mercantile Marine Dept. of the Ministry of Shipping and Transport clearly mentions these vessels as Other Cargo ships, which again proves that the impugned vessels do not fall under the purview of CTH 8905. The technical features of the vessels also indicate that these vessels are self-propelled and have modern navigation and communication systems installed. Even the .....

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r CRH 8901 of the Customs Tariff and not under CTH 8905 and we hold accordingly. 7.10 The appellants have also relied on the decision of? this Tribunal in the CGU Logistics v. CC, Mumbai reported in 2011 (274) E.L.T. 75 wherein the classification of a transshipment vessel was considered. The competing classifications were Headings 8901 and 8905 as in the present case. The vessel in that case was a self-propelled one with dedicated conveyor system in a stationary position, designed for short trad .....

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s are self-propelled, have capacity for carrying cargo and persons and have unrestricted navigational capability. The certificates issued by the Indian Registry of Shipping and Mercantile Marine Dept. also classify the vessel as supply vessel. Therefore, the ratio of the above decision applies squarely and the impugned vessels merit classification under CTH 8901. The above reproduced paragraphs from the judgment clearly indicate that the navigability is the prime function for classification of a .....

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