TMI Blog2004 (9) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ocean going/foreign going vessel and ultimately disposed the same, in 2001 for breaking. The same was purchased by a Tender filed by the Respondents from Shipping Corporation of India, which it was in the Indian Waters and Port of Porbander Gujarat. (ii) By an order dated 3-10-2001, Dy. Commissioner Bhavnagar confirmed the duty, on a BE filed, at that part for bringing the vessel from Porbundar Port, where it was sold as scrap for breaking. The duty was demanded since the vessel was built in India somewhere 1982, under Section 65 of the Customs Act, 1962, and now Custom Duty was to be levied, in terms of provisions of Notification 163/65-Cus. dated 16-10-65 as amended by Notification 129/86-Cus. dated 17-2-86. (iii) Commissioner Appeal, on 20-8-2002, remitted the matter back for de novo consideration, for a limited purpose i.e. to ascertain the fact with an evidence showing whether the payment of duty was effected at the time of manufacturing of the said vessel which was built at Vishakapattanam Bonded Warehouse Manufacturing facility. (iv) A refund claim was filed by the Respondent prior to this order of CC (Appeal). The same was not entertained on the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90% of the Price by TT No. 1 into SCTs A/c on 16-1-2001 Rs. 3,97,26,900.00 2. Amount credited by you towards Sale Tax @ 2.2% on Sale Price by TT No. 1 into SCTs A/c on 16-1-2001 Rs. 9,71,102.00 Yours faithfully, Sd/- General Manager" 23. The above two documents clearly shows that (i) the said vessel was sold for scrapping and (ii) the sale was in India as Sales Tax was charged from the buyer. If the sale was made in India, the importer will be M/s. Shipping Corporation of India as they have sold the goods in India. The word importer has been defined in the Section 2(26) of the Customs Act, 1962 as - "Importer", in relation to any goods at any time between their importation and the time when they are cleared for home consumption, include any owner or any person holding out to be the importer." 24. By charging Sales Tax, the Shipping Corporation of India has held themselves as importer. As per Tender document itself, and the invoice issued, they have sold the vessel for scrapping. The fiction created by Notification No. 163/65 dated 16-10-1965 will clearly be applicable to M/s. Shipping Corporation of India. I rely on the decision of Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bander would be a voyage as ocean going vessel, the voyage form Porbander to Alang for breaking even if on its own steam, would be not a voyage of an Ocean Going Vessel. (viii) Notification 163/65 exempted any ocean going vessel, manufactured in a warehouse, in accordance with the provision of Section 65 of the Customs Act, 1962, from the whole of duty of custom leviable". Therefore, the subject vessel would be exempted provided it was 'Ocean going'. The proviso to the said notification reads "Provided that the duty of Customs shall be levied on the vessel if it is broken up as it were then imported to be broken up" Therefore, once the vessel was not "Ocean going and used as such vessel/and used in internal waters it would not be eligible to this duty exemption, it would pay duty as applicable to a vessel. However, if the said vessel was to be broken up, the vessel rate of duty was not called for, by fiction of law on conversion from Ocean going status and intended breaking up, it would be levied Customs duty under heading for Vessels for breaking up which would be under Heading 8908.00. The duty liability on the subject goods is therefore to be now decided and at what stage that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase for breaking up cannot be found to be 'Importer' of the subject vessel. They have then been rightly held to be not liable to a duty demand in this case. Duty can be demanded only from an Importer under Section 28 of the Customs Act, 1962. (x) The assessment resorted to on a BE filed for Imported goods at Bhavnagar Port by the Respondent, will not entitle the Revenue to demand duty from the Respondents. Since the goods when they entered Bhavnagar Port were not as a vessel but 'vessel for breaking up ' on a Coastal voyage from Porbander to Bhavnagar. Respondent was not an importer of goods, liable to duty under Section 12, requested to be cleared under Section 46 of the Customs Act, 1962 or goods exported out of India re-imported at Bhavanagai to be liable to duty under Section 20 of the Customs Act, 1962. There is a specific provision made under Notification 16/2000-Cus. dated 1-3-2000 to the following effect. "65. If the vessels and other floating structure are intended to be broken up after their importation, the importer shall present afresh bill of entry to the Commissioner of Customs and therefore such goods shall be chargeable with the duty which would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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