TMI Blog2001 (1) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the seller of the vessel full value of the LC opened by the said Priya Blue Industries Pvt. Ltd. of the value US $ 68,49,839/- equivalent to Rs. 24 crores approximately. This said company being the importer after physical delivery was taken by it sought permission from the proper authorities for beaching the vessel at Plot No. V-I and the same was permitted by the proper officer of the Customs at Alang. The vessel under the guidance of the Port Officer Alang drifted at Sousiya shore and dragged towards the Plot No. V-5 of Sousiya and grounded there and Plot No. V-5 Sousiya was held by Udayani Ship Breakers, the appellant before us. Thus the ship could not be beached at the importer's plot (Plot No. V-I) due to heavy sea current and storm. Therefore the importer vide its application dated 24-6-1997 requested the Assistant Commissioner for extension of filing bill of entry for home consumption; so that they could pull the ship to their plot. The permission was granted by Assistant Commissioner and directed the importer to file bill of entry at the earliest. As the vessel could not be moved an inch another extension was sought by the importer which was not granted. On 11-9-1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to accept the value claimed made by the Respondent namely at Rs. 12,01,00,000/-. The assessing officer have taken the price offered and charged for by the foreign seller in the ordinary course of international trade on the importer as it was an admitted fact that the commercial invoice confirmed the value and it was an admitted fact that no duty was discharged on this value, US $ 68,49,839/- and goods after it was imported and before it was cleared for home consumption. Against this order an appeal was filed by the Respondent. 4.In the appeal the Commissioner (Appeals) took note of section 22 of the Act for abatement of the duty and also referred to the judgment of the Tribunal in J.M. Industries v. CCE - 1989 (39) E.L.T. 109 and held for the purpose of assessment the value would be the price paid by the Respondent to the original buyer M/s. Priya Blue Industries Pvt. Ltd., namely Rs. 12,01,00,000/-. He also granted Modvat of CVD of Rs. 1,09,68,898/-. He held in the impugned order that as regards the basic customs duty and special duty the bill of entry, which was assessed at Rs. 91,14,315/- being the value of the ship declared by the assessee Respondent in the bill of entry. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses." He therefore stated that in this case also there has been an existence of supervening accidents, which forced the ship to change from one plot to another plot. Their letter dated 17th November, 1997 the Respondent had already given the true picture to the Superintendent about the precarious condition. He also cited the judgment of the Tribunal in Collector of Customs v. Sundaram Fasteners Limited - 1996 (86) E.L.T. 49 where under similar circum-stances the Court accepted the abatement. 7.We have considered the rival submissions. It is useful for us to address the facts of the case. On 4-6-1997 the original importer Priya Blue Industries Pvt. Ltd. took physical delivery of the ship. On 24-6-1997 the importers requested time for filing Bill of Entry. On 12-8-1997 LC was opened and it was paid on that day itself. The importer thereafter sought and had been granted permission for beaching the vessel. The Respondent presented the bill of entry on 12-9-1997 and prices was stated to be Rs. 12,01,00,000/-. The memorandum of agreement between the foreign seller and the importer was dated 2-6-1997. These are all revealed in the review order. The agreement between the importer and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Price approved by High Court. Here no such situation like that. Imported for ship breaking. There it was an ocean going vessel. It became regular after arrest by the Sheriff of Bombay and sold by auction under the Orders of the High Court. Here no such things happened. Situation is absent here. No Act of God in cited case. Here there is act of god in the instant case. Consumption certificate given by Metal Scrap Trading Corporation. In this case no such situation exists. Reference to conditions 11, 12, 15, 16 of the Auction Sale. No such equivalent condition in this case. (Please see paragraphs 8 and 9 of the judgment. 11.The main difference between the facts in this case and Collector of Customs v. Sundaram Fasteners Limited is there was no sale in that case. Therefore facts in that case cannot be applicable. Moreover in paragraph 7 it has been held that Priya Blue Industries sold the goods on High Seas Basis during the course of International Trade. It is an admitted fact that between both sides before us on 4-6-1997 Priya Blue Industries Pvt. Ltd. took physical delivery. On 24-6-1997 the said Company requested ..... X X X X Extracts X X X X X X X X Extracts X X X X
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