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TMI Blog2002 (2) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... was made immediately. Subsequently on 14-2-93 as also on 27-5-93, the barge had arrived at Bombay Port. Being a dumb barge, on both occasions it was towed by another vessel. The IGMs had on each occasion declared the lay barge as a towed vessel and did not declare it as cargo. This barge was put into operation by the Appellants for laying a pipe for an ONGC Project. Subsequent to the down payment immediately on filing of the MOU, later payments were made in October, 1993 and December, 1993 and at that point the Bankers had advised the Appellants to file a Bill of Entry and hence the Appellants filed the same. The 3rd IGM was filed on 4-3-94 declaring the same barge as towed barge but also showed it as cargo . 3. On study of the documents and the various explanations advanced by the importers, the Customs Authorities observed that since the barge had effectively been bought by the Appellants in February, 1993, the Bill of Entry should have been filed on the first occasion when the barge had been brought in tow. It was also observed that while filing the general declarations on 14-2-93 and 27-5-93 the same barge should have been declared as cargo and not as a vessel in tow . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly this para was removed from the import policy. The Commissioner thereafter examined the contested classification. After an exhaustive analysis the Commissioner held that proper classification was under Heading 8906.00. He also extended the benefit of Notification No. 133/87-Cus., dated 19-3-87. 5. Having established the liability to confiscation under Sections 111(d), (f) and (j) of the said Act and having observed that the barge was not available for confiscation, he imposed a penalty of Rs. 2.50 crores on M/s. Essar Oil Ltd. For rendering the barge liable to confiscation he also imposed a penalty of Rs. 5 lacs on the Steamer Agents M/s. Modest Shipping Pvt. Ltd. Against this order M/s. Essar Oil Ltd., and M/s. Modest Shipping Pvt. Ltd. have filed the present Appeals. 6. The first issue for decision is whether on the first two occasions when IGMS were filed on 15-2-93 and 26-5-93, the dumb barge was goods or whether it was a foreign going vessel . We observe that the entire dispute commenced with the filing of the Bill of Entry on 18-3-94 in which the same barge was declared as goods for home consumption . The barge is utilised for pipe laying operations. The fact of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered as goods . We find that the ratio of the cited cases do not apply to the case before us for the simple reason that the barge in question is not a powered barge. It is a dumb barge not capable of moving itself. In both these judgments it has been specifically noted by the Supreme Court that the transhippers were capable of moving on their own. Thus where locomotion is a basic criterion the contested goods would not qualify for the phrase ocean going vessel or sea going vessel . Therefore at the time of each entry, the said barge was goods and was not a vessel immune from being described as cargo . 11. The Tribunal judgment in the case of Sedco Forex Inc. Ors. (Order Nos. C-I/303-309/WZB/2001, dated 2-2-01 [2001 (135) E.L.T. 625 (T)] has been cited. This case involved importation of rig in identical circumstances inasmuch as it was towed by another vessel. In examining the liability to confiscation under Section 111(f) of the Act the Tribunal took cognizance of the fact that the manifest did not declare the rig as cargo. The Tribunal however noted that the general declaration had shown that the rig was being towed. While accepting that the manifest was imperf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r year of use. If the policy was to be interpreted in the manner the Tribunal adopted, then the very prohibition would be rendered nugatory. It is on the basis of birth that the age of capacity, age of consent or age of maturity in the case of humans are counted. Viewed in this manner the Commissioner s observation that the barge did not fall in the permissible criterion and the liability of confiscation under Section 111(d) attracted would stand established. 15. The Commissioner refrained from confiscation of the barge on the ground that the same was not available for confiscation. However he imposed a penalty of Rs. 2.5 crores on M/s. Essar Oil Ltd. for rendering the barge liable for confiscation. 16. As far as the quantum of penalty is concerned, the learned Counsel submitted that it was exorbitant. Citing the Supreme Court judgments in the cases of Hindustan Steel - 1978 (2) E.L.T. (J 159) = 1979 AIR S.C. 255 and Akbar Badruddin Jiwani - 1990 (47) E.L.T. 161 (S.C.) prayer is made for removal thereof. 17. We have earlier observed that the circumstances in which the barge was brought in and also the use of which it was put, was the same on the earlier two occasions of its i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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