TMI Blog2017 (2) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Earlier before the learned CESTAT the respondent assessee heavily relied upon the decision in the case of Shree Dev Krupa Ship Breaking [2013 (6) TMI 370 - GUJARAT HIGH COURT]. Even the Division Bench of this Court also earlier dismissed the present Tax Appeal considering the decision of this Court in the case of Shree Dev Krupa Ship Breaking. The Hon’ble Supreme Court reversed the decision of this Court in the case of Shree Dev Krupa Ship Breaking and also set aside the order passed by this Court in the present Tax Appeal. While remanding the matters / appeals to this Court, the Hon’ble Supreme Court also framed the aforesaid questions of law and remanded the matter to this Court to consider the aforesaid questions of law only - Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame leviable in accordance with proviso to Notification No.163/65Cus dated 16.10.1965, or otherwise [1.1] It is required to be noted that relying upon the decision of this Court in the case of Commissioner of Customs vs. Shree Dev Krupa Ship Breaking rendered in Tax Appeal No.537/2004, the Division Bench of this Court vide order dated 28.07.2006 dismissed the present Tax Appeal. However, subsequently, against the order passed by the Division Bench of this Court in Shree Dev Krup Ship Breaking (Supra) and the decision of this Court in present Tax Appeal No.1490/2005, the matters were carried before the Hon ble Supreme Court and the Hon ble Supreme Court allowed the said appeals being Civil Appeal Nos.1577/2007 and 1578/2007 and quashed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing substantial questions of law arise for consideration of this Court. [1] M/s Shree Dev Krupa Ship Breaking, Sosio Ship Breaking Yard, Bhavnagar, are not importer within the meaning of section 2(26) of the Customs Act, 1962 (Para ix) of Page 8 of CESTAT order? [2] In the absence of specific condition (like condition No.65 of Notification No.16/2000Cus dated 2.03.2000) stipulating the filing of fresh Bill of Entry for breaking up and creating a legal fiction in the Notification No.163/65Cus dated 16.10.1965 as amended vide Notification No.129/86Cus dated 17.02.1986 cannot be retrospectively extended and posted to be read in Notification No.163/65Cus dated 16.10.1965 as amended (para (x) of page 9 of CESTAT Order)? [3] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by the Division Bench of this Court in Tax Appeal No.537/2004. The aforesaid is not disputed by Shri Paresh Dave, learned Counsel appearing on behalf of the respondent. However, Shri Dave, learned Counsel appearing on behalf of the assessee has submitted that before the learned CESTAT some other submissions were also made, however without deciding other questions / submissions, the learned CESTAT dismissed the appeal preferred by the Revenue considering the decision of this Court in the case of Shree Dev Krup Ship Breaking (Supra) in Tax Appeal No.537/2004. It is submitted that therefore irrespective of the decision in Tax Appeal No.537/2004 dated 26.07.2012, it is requested to remand the matter to the learned CESTAT to consider other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in the present case also, and accordingly a substantial portion of the duty demand would disappear if additional customs duty is exempt. 4) This Hon ble Court has held in case of Shivam Engineering Co. Others 2014 (310) ELT 641 (Guj.) that additional customs duty on ships and vessels under Heading No.89.08 of the Customs Tariff Act, which covers vessels and other floating structures for breaking up, is not leviable because this heading is ultra vires Section 3(1) of the Customs Tariff Act. In view of this principle laid down by this Hon ble Court also, demand of additional custom duty, which forms a substantial portion of the total demand, would be invalid. 5) Even otherwise, the Central Government has exempted recovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect to levy of additional customs duty on ships and vessels which was never raised earlier. It is required to be noted that earlier before the learned CESTAT the respondent assessee heavily relied upon the decision in the case of Shree Dev Krupa Ship Breaking (Supra). Even the Division Bench of this Court also earlier dismissed the present Tax Appeal considering the decision of this Court in the case of Shree Dev Krupa Ship Breaking (Supra) in Tax Appeal No.537/2004. The Hon ble Supreme Court reversed the decision of this Court in the case of Shree Dev Krupa Ship Breaking (Supra) in Tax Appeal No.537/2004 and also set aside the order passed by this Court in the present Tax Appeal, which was dismissed relying upon the decision in Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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