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TMI Blog2008 (7) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... 16-10-1965 ? II. Whether the Tribunal committed error in not following the law laid down by Hon'ble High Court in the case of M/s. Haryana Ship Breakers Pvt. Ltd. reported at 1997 (96) E.L.T. 541 (Guj.) believing it contrary to the Apex Court's judgment in Jalyan Udyog reported at 1993 (68) E.L.T. 9 (S.C.)? III. Whether the Tribunal committed error as on presentation of Bill of Entry as required under Section 46 (1) of the Customs Act, 1962, and filing of IGM by importer, he will be liable to pay customs duty and not the original owner of the ship? Subsequently, appellant has proposed following four additional questions. IV. Whether M/s. Mustan Taherbhai is not an importer within the meaning of Section 2 (26) of the Customs Act, 1962 ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d shipyard of the manufacturer. The case of the appellant revenue is that customs duty on a vessel taken for breaking-up is leviable by virtue of fiction as if the vessel were then imported for the purpose of breaking-up by virtue of Notification No.163/F.No. 3/15/65-D CUS VII, dated 19th October, 1965. 3. The case of the respondent was that respondent is not liable to be assessed the customs duty merely because Bill of Entry No; F-2/97-98, dated 20-5-1997 was filed by the respondent. Revenue did not accept the contention of the respondent and provisionally assessed duty to the tune of Rs. 78,73,005/-. Respondent carried the matter-in-appeal before the Commissioner (Appeals) and failed. 4. Revenue carried the matter-in-appeal before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that substantial question of law arose and it needs consideration. 6. In the case of Jalyan Udyog (supra), the Apex Court has observed as under: (page 20) 20. We are, however, of the opinion that since the date of breaking-up is an uncertain event and may require an enquiry in each case and also because no ship can be broken-up or scrapped except under the prior permission granted by the Director General of Shipping, the date of breaking-up contemplated by the said proviso should be deemed to be the date on which the permission for scrapping/breaking is accorded by the Director General of Shipping. This clarification is made in the interest of certainty and to obviate avoidable controversy. It is with reference to such date that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj, Dy., Secy. 8. Applying the ratio of the Apex Court decision to the facts of the case, it becomes apparent that an ocean-going vessel, which is manufactured in a warehouse, is exempted from duty of customs leviable when cleared from the warehouse but such duty of customs shall be levied on the vessel if it is broken up as if the vessel were then imported to be broken up. In the present case, as noted by the Tribunal, Shipping Corporation of India was granted permission on 4-4-1997 by the Director General of Shipping. In the circumstances, the customs duty, which had been deferred by virtue of notification, I became leviable on 4-4-1997 as laid down by the Apex Court. Merely because the Memorandum of Agreement provides for the purchaser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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