9911796707
TMI Blog2024 (3) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 28(1)/28(4) of the Customs Act, 1962. In addition to that towards the cost of transportation at 20% of the FOB value also added. Accordingly, value of the ship is re-determined as Rs. 33,06,48,750/-. The total short paid duty of Rs. 30,31,174/- demanded with applicable interest. Rs. 40,85,906/- also demanded with applicable interest on the Bunkers which was short paid at the time of filing B/E. The Appellant submits that the value was Rs. 26,91,00,000/- declared in the B/E is the transaction value and cannot be rejected since it is based on the purchase invoice dated 09.05.2011 and supported with Chartered Engineer's certificate on 09.05.2011. Regarding additional cost of transportation, the appellant produced chart indicating voyage cost from Colombo to Mangalore and as per the said chart, total freight cost is Rs. 4,51,798/- only. Thus, assessing the cost of transportation @ 20% is unjustifiable. Regarding the loading of value on the balance bunkers, it is submitted that they have declared the same separately on arrival of the ship at the old Mangalore port under B/E No. 5 dated 13.05.2011 and paid an amount of Rs. 23,91,857/- towards Customs duty. 3. Adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 5.98 Million as declared by the appellant. Learned Counsel further submits that price actually paid for the sale of vessel by the appellant is Rs. 26,91,00,000/- in terms of invoices dated 09.05.2011 and it was sold on CIF basis. Therefore, the said value has to be accepted as the transaction value. As regards the cost of adding 20% towards transportation charges, Learned Counsel submits that the scheme of valuation intended for general application of goods and such cost of adding 20% towards transportation charges not applicable for import of a vessel arriving under its own steam. To support the same, Learned Counsel draw our attention to the decision of the Tribunal in the matter of Sachin Kshirsagar Vs. Commissioner of Customs, 2023 (383) E.L.T. 190 (Tri.-Mumbai) which was upheld by Hon'ble Supreme Court in 2023 (383) E.L.T. 144 (S.C.). Learned Counsel further submits that transaction value can be rejected only when sufficient evidence available on record and in the absence of any evidence, there is no justification for loading the value. Regarding inclusion of handling charges. Learned Counsel submits that it is justified only when such charges are not known or are not ascer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Kolkata) and National Aviation Company of India Vs. CCE, 2018 (8) TMI 1300 of the Tribunal. 7. Learned Counsel also submits that they are eligible to claim exemption in terms of Sl. No. 111 of notification No. 1/2011-C.E. dated 01.03.2011 since the imported vessel falling under CTH 89.01 and they have not availed of credit of CVD on the inputs under the CENVAT Credit Rules, 2004. Thus the payment of 5% CVD paid at the time of filing the Bill of Entry are to be returned. To support the same, Learned Counsel relied on the judgement of Hon'ble Supreme Court in the matter of SRF Ltd. vs. Commissioner of Customs, 2015 (318) E.L.T. 607 (S.C.) and affirmed in 2016 (340) E.L.T. A202 (S.C.) wherein it was held that where no credit has been availed, the exemption from CVD cannot be denied to assessee while re-opened the issue of valuation. Learned Counsel also draw our attention to the decision of the Tribunal in the matter of Kalyani Lemmez Limited Vs. CCE, 2002 (150) E.L.T. 755 (Tri.-Mumbai) where it is held that when the department has reopened the assessment and demanded differential duty for whatever reasons, it is open to the assesse to contest the demand for the higher differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Bunkers on board at the time of delivery at Colombo resulting non-payment of duty amounting to Rs. 40,83,901/-. 11. In the present case, though the invoice value of Rs. 26,91,00,000/- was declared at the time of import, as per the prevailing practice, at the request of appellant, it was subject to valuation by Chartered Engineer and as per the valuation report, chartered engineer assessed the value of ship as Rs. 27,00,00,000/- and based on the above said value, it was allowed to clear on payment of proper Custom duty. Now in addition to that, adjudicating authority is adding 20% as cost of transportation, handling charges of 1.125% and 1% of assessable value for confirming demand of Rs. 30,31,174/-. Considering the Judgment of Hon'ble Supreme Court in the matter of Wipro Ltd Sachin Kshirsagar and finding in the matter of Sachin Kshirsagar (Supra) The inclusion of 'freight' and 'insurance' in the assessable value in commercial parlance, is designated as 'CIF' in transactions. The vessel, ever coursing the seas and oceans, does not take on additional insurance merely for the purposes of movement to a destination for registration and the cost of self-propulsion does not add to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
