2005 (1) TMI 571 - AT - Customs

Summary

Issues:
1. Jurisdiction of the Commissioner of Central Excise, Visakhapatnam over transhipment of ship stores.
2. Applicability of transhipment provisions under the Customs Act to ship stores.
3. Allegations of wilful suppression of facts by the Respondents.
4. Liability of duty on imported ship stores placed on board a coastal vessel without payment.
5. Consideration of imported stores in the nature of machinery being intact and not consumed.
6. Application of Section 55 and Section 87 of the Customs Act in the case.
7. Determination of penalty on the respondents.

Jurisdiction of the Commissioner of Central Excise, Visakhapatnam:
The appeal was filed against the Adjudication Order passed by the Commissioner of Central Excise, Visakhapatnam, demanding duty on ship stores transhipped to a coastal vessel. The Revenue contended that the Commissioner lacked jurisdiction as the importation occurred at Chennai and show cause notice was issued by Chennai Customs. However, the Tribunal held that the Commissioner had jurisdiction under Section 55 of the Customs Act, as the transhipped goods were liable to duty upon arrival at Kakinada. The Adjudication Order dropping the proceedings was upheld based on jurisdiction.

Applicability of Transhipment Provisions to Ship Stores:
The Revenue argued that transhipment provisions under Section 52 of the Customs Act do not apply to ship stores, and duty should have been paid at the port of importation. The Tribunal agreed, stating that transhipment of ship stores without payment of duty was incorrect. The Customs authorities erred in allowing transhipment under the wrong procedure. It was emphasized that imported goods cannot be placed on a coastal vessel without duty payment, as per Section 55. The Commissioner's decision to drop proceedings was justified due to the intact nature of the transhipped goods.

Allegations of Wilful Suppression of Facts:
The Revenue alleged wilful suppression of facts by the Respondents regarding the nature of the goods being ship stores. However, the Tribunal found no suppression as transhipment was conducted with Customs permission at Chennai and Kakinada. Therefore, the proviso to Section 28(1) could not be invoked against the Respondents.

Liability of Duty on Imported Ship Stores:
The Tribunal highlighted that duty should have been paid on imported ship stores at the port of importation. The Customs authorities erred in allowing imported goods on board a coastal vessel without duty payment. The Commissioner's decision to drop proceedings was supported by the intact condition of the ship stores and the subsequent conversion of the vessel to a foreign-going vessel.

Consideration of Imported Stores and Application of Customs Act Sections:
The Tribunal emphasized the application of Sections 55 and 87 of the Customs Act in the case. Imported stores, treated as machinery parts, were found intact and not consumed. As per Section 87, imported stores may be consumed without duty payment only on a foreign-going vessel, which was not the case initially. The Customs procedures for duty payment and refund were highlighted to show the error in permitting duty-free placement of ship stores on a coastal vessel.

Determination of Penalty:
Based on the observations and findings, the Tribunal concluded that no penalty was leviable on the Respondents. The Order-In-Original (OIO) was upheld, and the Revenue's appeal was dismissed. The decision was pronounced in open court on 20-1-2005, emphasizing the dismissal of the penalty and upholding of the Adjudication Order.