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TMI Blog1999 (11) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 234/82-CE which grant exemption to Ocean-going vessels for Central Excise duty purposes as the imported vessels were not Ocean-going vessels but were brought into the country for the purpose of breaking the ships. There is no dispute regarding the levy of Customs duty and auxiliary duty. It is only the Countervailing duty which is disputed in the appeals. 2. The question pertaining to ship breaking being a process of manufacture and whether countervailing duty can be levied thereon has not been considered by both the authorities. 3. Arguing for the appellants Shri A.S. Sunderrajan, ld. Advocate submits that the Apex court in a Constitutional judgment comprising of 5-Judges have held in the case of Hyderabad Industries Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93 (68) E.L.T. 9 (S.C.) wherein the exemption Notification No. 162/65-Cus., dated 16-10-1965 was considered and in the said notification, a legal fiction had been introduced by which the Ocean-going vessels other than vessels imported to be broken up were exempted from payment of Customs duty leviable thereof. Hon ble Supreme Court held that in view of the fiction introduced therein, Ocean-going vessels were brought in for the purpose of breaking would not be eligible for the exemption. He submits that the present case also would stand on the same footing as the ocean-going vessels were brought in for breaking purpose. 5. In counter, ld. Advocate pointed out that in the Notification No. 234/82-C.E., dated 1-11-1982 there was no such wordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Dredgers, Barges and Tugs were to be considered as Ocean-going vessels under Notification No. 234/82-C.E., dated 1-11-1982. 6. Ld. D.R. further points out that the Calcutta High Court in the case of Shipping Corporation of India v. CC as reported in 1994 (72) E.L.T. 817 (Cal.) held that Ocean-going vessels imported in 1959 and subsequently sold in 1985 for being broken up were held to be liable for Customs duty. He also relied on Ashish Steel Pvt. Ltd. v. CCE as reported in 1999 (106) E.L.T. 269 wherein the Tribunal interpreting the Chapter sub-heading 7215 of CET, 1985 held that the headings itself suggested that breaking of ships would amount to an activity of manufacture. Ld. Advocate pointed out that Shipping Corporation of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or toping up operations. The question before the Apex Court was totally different and not pertaining to the issue as in the present case and hence there is a misapplication of judgment calling upon us for setting aside the order on this ground alone. We further notice that the Commissioner has not examined the issue as to whether breaking of ships amounts to a process of manufacture. In the light of the latest judgment rendered in the case of Hyderabad Industries, this question is required to be answered. Hon ble Court in the case of Hyderabad Industries Ltd. has held that for the purpose of levying additional customs duty (Countervailing duty) under Section 3(1) and Customs Tariff Act, the authorities have to examine as to whether such goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to levy of countervailing duty. In the case of UOI v. Jalyan Udyog (supra) the Apex Court examined.the Notification No. 262-Cus. dated Oct. 11, 1958 where the examination was for Ocean-going vessels other than vessels imported to be broken. In the present Notification No. 234/82 in Sl. No. 32 the words are only Ocean-going vessels . There are no words other than vessels imported to be broken up . Therefore, these words which are in Notification No. 262-Cus., dated Oct. 11, 1958 cannot be imported in the Sl. No. 32 of Notification 234/82 for the purposes of interpretation. Hence, this judgment cannot be applied. The Tribunal in the case of Bharti Shipyard (P) Ltd. (supra) has already considered Dredgers, Barges and Tugs to be exempted as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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