TMI Blog2018 (4) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... t and compelling feature of those vessels that are classifiable under 8901. All the goods enumerated in chapter 89 have some association with the waters and it is only flotsam, jetsam and wrecks that may be deprived entirely of navigability. It would appear that the adjudicating authority has failed to appreciate the sense and implication of the expression 'navigability' which is required to be harmoniously read with the description in that subheading instead of being read as the distinction between that subheading and other subheadings of the chapter. The classification merits fresh determination particularly in the light of the various judicial decisions dealing with import of 'supply vessels - the mistakes in the order of the Tribunal require rectification. These issues do not find sufficient coverage in the adjudication order. The plea of the applicant for remanding the matter to the original authority till disposal of the dispute on jurisdiction is not to be ignored - In view of the above terms of remand, which would require determination of dutiability itself, recourse to section 111 of Customs Act, 1962 is in jeopardy. it would, therefore, be appropriate to set aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... devoid of merit. 4. According to Learned Counsel for applicant, the evident non-consideration of critical submissions apparent in the paragraph supra and the contradiction between the summation and the specific reliefs afforded to the applicant suffices to have the order recalled for allowing the appeal, Furthermore, it is his contention that the circumscribing of the directions to be original authority was not warranted considering the breadth of the issues raised during the course of proceedings which have not been answered to the fullest satisfaction of law. 5. A Miscellaneous Application under rule 28C of the Customs Excise Service Tax Appellant Tribunal (Procedure) Rules, 1982 for advancing an additional ground is also before us for disposal. We shall turn to that presently. 6. The first contention of the applicant is that, in deciding upon the classification in heading no. 89059090 of the First Schedule to Customs Tariff Act, 1975, the Tribunal would have come to a different conclusion had the decisions in Hal Offshore Ltd v. Commissioner of Customs (Import), Mumbai [2014 (303) ELT 119 (Tri-Mumbai)], Raj Shipping Agencies Ltd v. Commissioner of Customs (Import) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification to prevent miscarriage of justice. 10. The fourth contention of Learned Counsel is that the Tribunal had, in two instances, classified similar vessels under heading no, 8906 which should have guided the decision in the matter of the applicant and, despite pleading, had not been taken cognizance of. These are Hind Offshore Pvt Ltd v. Commissioner of Customs (Import), Mumbai [2015-TIOL-320-CESTAT-MUM] and Sapura Shipping P Ltd v. Commissioner of Customs (Import), Mumbai [2016 (343) ELT 1144 (Tri-Mumbai)]. 11. That these four submissions, backed by the relevant decisions now place before us, had been made during the hearing is not in doubt. The records bear this out and Learned Special Counsel for Revenue also does not dispute. That the decisions cited were critical for appreciation of the inadequacies in the order of the original authority and would have been demonstrative of the glossing over of some key preliminary issues is also not in doubt. Whether these are within the competence of the Tribunal to consider in an application for rectification of mistakes is the question that must be answered. According to Learned Special Counsel appearing for Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2015 (317) ELT 388 (T)] and in SHS Electronics v. Commissioner of Central Excise Coimbatore [2017 (350) ELT 298 (T)] to elucidate his view that the contentions in the application, as summarized by him, are not to be addressed in the present proceedings. The depriving of power of review otherwise vested in the higher judiciary from the legislative architecture of the Tribunal has, according to him, been very clearly laid down by the Hon'ble Supreme Court in Commissioner of Central Excise, Vadodara v. Steelco Gujarat Ltd [2004 (163) ELT 403 (SC)], 15. We are indebted to Mr Mondal for drawing attention to these decisions and appreciate his caution to us from overreaching the boundaries of our powers and authority; we have, thereby, been able to sharpen our thoughts and enabled to formulate our views. Suffice it to say that we shall restrict ourselves only to such contentions that, if any, are apparently mistakes and with consequences that may be irreparable. 16. Addressing himself to the task of highlighting the hollowness of the contentions of the applicant, Mr. Mondal submitted that classification being a mixed question of fact and law, the Tribunal had analyzed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity has been vested with the power to call for the invoice and any other documents related to import of goods covered by the said Bills of Entry to examine truth of the declaration in the Bill of Entry. Appellant failed to file Bills of Entry in respect re-import of all the three vessels made from to time to examine whether there were any repair/renewal/ modification was done to the vessels and machinery installed if any, installed thereon as well as freight and insurance charges incurred for the to and fro journey undertaken by the vessels. Accordingly, Customs Authority was prevented to know the cost of such repair, cost of installed machines, freight and insurance charges incurred in respect of these vessels when entered into India on re-import. Thereby interest of Customs was prejudiced 59. Appellant pleaded that when vessels were arriving during the impugned period, authorities having taken inventory of the store in the vessel as exhibited by the sample copy of the document at page 81 of the paper book, Volume-VII, it was within their knowledge that vessels have entered into India on re-import. But such plea of appellant is devoid of merit for the reason that appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of various decisions of the Tribunal remanding disputes back to the original authority in the light of the decision of the Hon'ble High Court of Delhi in Mangali Impex Ltd v. Union of India [2016 (335) ELT 605 (Del)] , Mr. Mondal contended that this had not been raised during the hearing of the appeal and that, while rule 10 of Customs Excise Service Tax Appellant Tribunal (Procedure) Rules, 1982 did empower inclusion of additional grounds during the pendency of appeal, the same cannot be said to be permissible once the appeal has been disposed of. Moreover, according to him, rule 41 of the said Rules was intended for a different purpose and is not to be construed as a source of authority to allow additional grounds in proceedings initiated for rectification of mistakes. Furthermore, according to him, the show cause notices issued in July and August 2012 did not suffer from any infirmity as the Central Board of Excise Customs had, vide notification no. 44/2011-Cus OIT) dated 6ff July 2011, assigned the functions of 'proper officer' under section 28 of Customs Act, 1962 to the notice issuing authority whereas the decision relied upon pertain to the period prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termine the classification under chapter 89 of the First Schedule to Customs Tariff Act, 1975. Likewise, the Tribunal, too, proceeded to discard the primary contention of the appellant that the ships were conveyances by reference to decision of the Supreme Court in Union of India v. VM Salgaonkar Bros (P) Ltd [1998 (99) ELT 3 (SC)] and, having considered the technical specification as presented by the Learned Special Counsel for Revenue, went on to confirm the classification adopted in the impugned order. It is, therefore, apparent that, while the legal and logical superstructure was elaborated upon, the foundation for ascertaining dutiability was neglected. Undoubtedly, this ascertainment goes to the root of the dispute and a determination of duty liability, without that foundation, jeopardizes the superstructure. This would, undoubtedly, lie within that narrow strait allowed to the Tribunal, in the catena of decisions enumerated on behalf of Revenue, to take up for rectification. It may be worthwhile to tarry awhile to elaborate. 23. Customs Act, 1962 is concerned with taxation of goods and the definition of goods in section 2(22), inter alia, includes vessels and aircra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions of the same geographical feature concerning the vast body of salt water one side of which appears as horizon from the other. Hence we have no doubt that what is meant by the expression ocean-going vessels is not qualitatively different from sea-going vessels ' indeed the latter may include the former. 23. How an ocean-going vessel is understood in maritime enterprises can now be looked into. In the Shorter Oxford Dictionary, it is shown as a ship capable of crossing oceans . In the Random House Dictionary, it is shown as a ship designed and equipped to travel on the open sea In the Collins Dictionary of English Language, it is defined as a ship suited for the travel on the open sea 24. There is no dispute for the Department that by design and equipment, transhippers are intended to be used mostly to carry the cargo from harbours to the high seas and vice versa. That such transhippers often move into the open sea is also not disputed by the Department. Thus considering the question from all different angles, it is reasonable to take the view that merely because transhippers are used for carrying cargo for loading into the bulk carriers (those being un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of such conventions. The claim of the importer for coverage under the convention and the statutory provision pertaining to conveyance must be resolved before invoking section 20 or section 12 of Customs Act, 1962. This is conspicuously absent in the order of the adjudicating authority. 26. In considering the submissions of the notice on classification, the adjudicating authority has not paid sufficient attention to the harmonious construction of the descriptions in chapter 89 of the First Schedule to the Customs Tariff Act, 1975. Under the scheme of the tariff, there are certain governing principles: the specific prevailing over the general and the later being more valid than the previous are relevant here. It would appear from the findings of the adjudicating authority that the declaration furnished at the time of filing the bill of entry for the ships, when customs duties were 'nil' and, therefore, susceptible to placement without thought of consequence, weighed heavily. The submissions on behalf of Revenue during the hearing of the appeal also placed emphasis on this and it would appear that the requirement to adjudge the classification on first principles, as espou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination. Consequently, the restricted remand in the order of the Tribunal is enlarged to an open remand, 28. There has been an elaborate discussion on the eligibility for remand in accord with other decisions of the Tribunal in which the plea of jurisdiction has been raised. We are conscious that the applicant had not sought relief on this ground during the hearing of the appeal. We take note of the objections of Revenue that an application for rectifying a mistake is not the means for making such a plea. Nevertheless, such ground having been claimed, we have no option but to dispose it off. There is a principle of equity involved. The Tribunal has ample latitude in its functioning to ensure that the ends of justice are served in full measure. It is not far from our minds that the hierarchy of an appellate procedure culminating in the highest court of the land has been established solely for ensuring delivery of justice. It is never too late to for us fulfill that mandate. We take note also of decisions of the Tribunal which have allowed the plea of jurisdiction, which goes to the root of a dispute, to be raised even after hearing was concluded. 29. We take note that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r grounds, which stand rejected up to Supreme Court. Therefore, the principle of finality to litigation would put a seal on the present attempt on the part of the petitioner to reopen the issue all over again. 30. A disposition of the issue on merit against the applicant without touching upon the issue of jurisdiction which, if ultimately in favor the applicant, would saddle them with the detriment that should never have been. On the other hand, such postponement of decision on merit is not to the detriment of Revenue. It is this distinction that has motivated the Tribunal to defer determination of many disputes on merit by remanding the matter back to the original authority to await the final order on jurisdiction. We believe that this would best serve the ends of justice. 31. Taking note of the submission of Mr. Mondal that offices of Directorate of Revenue Intelligence were empowered as on date of issuance of notice leading to this dispute, we find that the dispute before the Hon'ble Supreme Court in re Mangali Impex, as decided by the Hon'ble High Court, covers notices pertaining to the period prior to the entrustment of powers of 'proper officer' by Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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