9911796707
TMI Blog1997 (11) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original No. 19/92, dated 30-3-1992, it was held that the appellants were not eligible to avail of concessional rate of duty and that they had to discharge duty liability @ Rs. 1,800/- per tonne up to 29-2-1992 and at the rate of Rs. 2,000/- per tonne w.e.f. 1-3-1992 together with SED as applicable on the ground that one of the conditions contained in the proviso to the Notification viz. relating to the date of import of the ship out of which the scrap was obtained by breaking up (i.e. 20-3-1990) was not satisfied as the ship in question broken up by the appellants was imported by the Naval authorities from the Soviet Union way back in 1973. Consequent upon the approval of the classification list a demand notice was issued to the appellants calling upon them to pay Rs. 8,13,151/- in respect of clearances of goods effected from February, 1992 to April, 1992. The Assistant Collector confirmed the demand, distinguishing the judgment of the Supreme Court in the case of Union of India v. Jalyan Udyog reported in 1993 (68) E.L.T. 9 (S.C.) cited by the assessees, and the lower appellate authority upheld the order passed by the Assistant Commissioner. 2. It would be useful to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up shall be chargeable with duty which would be payable if it were imported to be broken up. The proviso was substituted by the amendment and read thus : provided that the duty of customs shall be levied on the vessel if it is broken up as if it were then imported to be broken up. The Supreme Court in para 19 of this judgment held that the idea behind the Notification evidently was to encourage the import of ocean-going vessels and creates a fiction viz. the vessel must be deemed to have been imported for being broken up when it is broken up, though as a matter of fact, the import was at an earlier point of time. The Court further held that by virtue of fiction created by the proviso in the Notification, the vessel is deemed to have been imported by breaking up on the date it is broken up. The Supreme Court did not lay down any general ratio, shifting the date of import in all cases and hence we are still required to apply the definition of import as contained in Section 2(23) of the Customs Act, 1962 which defines import as bringing into India from a place outside India. Since the ship in this case was brought into India from Soviet Union in 1973, we hold that the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in the case of UOI v. Jalyan Udyog (supra). This case specifically deals with ocean going vessels which are initially imported duty free but subsequently, after use, are allowed to be sold for breaking up, and indicates as to which date should be treated as the date for determination of rate of duty and tariff valuation in terms of Section 15 of the Customs Act. 14. The facts and the relevant provisions of law applicable in the above case and the present one being similar, I consider that this judgment squarely covers the issue under consideration before us. 15. This judgment interprets and applies exemption Notification No. 162/65 (which is similar to Notification No. 133/87) and lays down that : The principle of the notification is no duty on import of such vessels but when after plying for a number of years, they are scrapped, pay duty on the supposition that it is imported for breaking-up on the date it is broken up" (the date of grant of permission for breaking-up by Director General, Shipping). The notification shifts the date of import in the case of a ship which is imported as an ocean-going vessel but is subsequently broken-up - from the actual date of import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Navy as M.V. INS KATCHEEL was originally imported by the Indian Navy from the Soviet Union in the year 1973. Under Customs Notification No. 262-Cus., dated 11-10-1958 as amended by Notification No. 163-Cus., dated 16-10-1965, ocean-going Vessels other than vessels imported to be broken up were exempt from the payment of customs duty leviable thereon. It was provided in the said Notification No. 262-Cus., dated 11-10-1958, as amended, that any such vessel subsequently broken up shall be chargeable with the duty which would be payable on her as if it were then imported to be broken up. The above mentioned Ocean-going Vessel was in the service of the Indian Navy for 19 years when in the year 1992 after de-commissioning it was disposed of for being broken up. The customs duty was paid on 6-1-1992 under Notification No. 133/87-Cus., dated 19-3-1987 which had been issued in supersession of the Notification No. 262/58-Cus., dated 11-10-1958. Under this Notification No. 133/87-Cus., dated 19-3-1987, issued in supersession of Notification No. 262/58-Cus., dated 11-10-1958 certain vessels when imported into India were exempted from the payment of customs duty. This exemption was not, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported by the Metal Scrap Trading Corporation Limited. No ship is imported for breaking up when it is new and is sea-worthy. If the Notification No. 62/90-C.E., dated 20-3-1990 is interpreted, as to refer to the import of vessels for Ocean-going, then no vessel may be eligible for this exemption as the vessels are broken up generally after they had out lived their life as a Ocean-going Vessel or when they are unfit to ply and are not seaworthy. In the present case, the ship was de-commissioned after 19 years of its service to the Indian Navy. 23. It is for consideration, whether the Supreme Court decision in the case of Union of India v. Jalyan Udyog - 1993 (68) E.L.T. 9 (S.C.), is applicable to the facts of the present case. In the case of Union of India v. Jalyan Udyog, supra on behalf of the ship owners, it was contended that a ship is imported only once into India; the import is when it first enters India and is registered in India according to law; it then becomes an Indian Flag bearing ship and that there can be no second import of such ship into India. After referring to the relevant provisions of the Customs Act, 1962 the Hon ble Supreme Court observed that under Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
