Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2017 (2) TMI 524 - GUJARAT HIGH COURT

2017 (2) TMI 524 - GUJARAT HIGH COURT - TMI - Whether in the facts and circumstances of the case M/s. Khanbhai Esoofbhai in whose hands the vessel was actually broken up is liable to pay customs duty that became leviable in accordance with proviso to N/N. 163/65Cus dated 16.10.1965, or otherwise? - Held that: - no question of law is framed with respect to levy of additional customs duty on ships and vessels and rightly not raised as no such question was raised before the learned CESTAT. Ther .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pa 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, by a detailed judgment and order dated 26.07.2012 in Tax Appeal No.537/2004, the Di .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

DGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.02.2005 passed by the learned Customs, Excise and Service Tax Appellate Tribunal, Mumbai (hereinafter referred to as CESTAT ), by which the learned CESTAT has dismissed the said appeal preferred by the Revenue relying upon its earlier decision in the case of Shree Dev Krupa Ship Breaking A/778/WZB/2004 dated 03.09.2004 which subsequently came to be confirmed by th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 Sup .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 e .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uestion, the Division Bench also framed one additional question of law. Thus, in the present case, the following 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 fi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

India to the respondent and not the date of beaching at Alang and on that date the importer would be Shipping Corporation of India (Para (xii) of page 10 of CESTAT Order? [4] Whether, on the facts and in the circumstances of the case, as provided under section 15 ibid, rate of duty in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section shall be the rate in force and accordingly, in the inst .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the order passed by the learned CESTAT and has answered all the questions which are common in the present Tax Appeal also, in favour of the Revenue and against the assessee. Therefore, as such substantial questions of law raised in the present Tax Appeal are already answered in favour of the Revenue and against the assessee, 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. Howe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

requested to remand the matter to the learned CESTAT to consider other issues. [2.1] It is submitted that following are such issues which arise in this case on which there is no decision of the Appellate Tribunal. 1) The case of M/s. Mustan Taherbhai on which the Commissioner of Customs (Appeals) relied upon has been ultimately remanded by the Hon ble Supreme Court as is reported in 2011 (265) ELT 161 (SC). The present case may also therefore be remanded to the Tribunal to examine the entire le .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tral Government has allowed exemption from Central Excise duty to vessels for breaking up and the Hon ble Karnataka High Court has held in case of Engee Industrial Services Pvt. Ltd. 2004 (164) ELT 242 (KAR) that additional duty of customs being directly linked to rate of central excise duty of customs being directly linked to rate of central excise duty, which is nil for ship imported for breaking up, the additional duty in respect of Tariff item 89.08 for vessels for breaking up must also be n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ng 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 of Customs duty on the value of imported parts and materials used in relation to a ship or a vessel constructed in India. Such exemption qua value of imported parts and materials used by Hindustan Shipyard L .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

decision in Tax Appeal No.537/2004 in the case of Shree Dev Krupa Ship Breaking (Supra) is against the assessee and in favour of the Revenue. He has also fairly conceded that question with respect to levy of additional customs duty on ships and vessels under Head No.89.08 of the Customs Tariff Act was neither raised before the learned CESTAT nor the said question arise in the present Tax Appeal. Therefore, the submission on levy of additional customs duty is raised now for the first time. Theref .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version