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TMI Blog2003 (6) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... d Jack up Rig Deepsea Matdrill alongwith leg sections and anchor and filed Bill of Entry on 28-4-93 classifying the goods under sub-heading 8905.90 of the First Schedule to the Customs Tariff Act and claiming exemption from duty under Notification No. 133/87-Cus., that as the Customs Department did not allow the clearance under the classification claimed by them and as the impugned goods were required urgently, they approached, the Civil Court in Delhi; that the Court of Commercial Sub-Judge, Delhi vide Order dated 24-8-93 restrained the Customs Authorities from causing obstruction in the movement and operation of the impugned goods to the ONGC sites till the disposal of the Suit binding them to pay duty, if any, under sub-heading 8905.90; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. C.C., Vizag, 2001 (132) E.L.T. 247 (T). The learned Senior Counsel also mentioned that after availing of benefit of this Notification, their duty liability, if any, would be Rs. 3 crores or so. 4. He, however, contended that the impugned goods are classifiable under sub-heading 8905.90 as Deepsea Matdrill is not a floating or submersible drilling or production platform as per certificate given by ONGC; that such an endorsement has been made also on the import licence; that it has been held by the Calcutta High Court in Asiatic Oxygen Ltd. v. Assistant Collector of Customs - 1992 (57) E.L.T. 563 (Cal.) that the Customs Authorities cannot dismiss the recommendation and endorsement of the DGTD and the CCI E as being certificate of busy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use undue hardship; that the rig in question was severely damaged in February, 2002 and is totally out of operation and they have to incur huge expenses for repair thereof; that on account of not being able to use the Rig, they are suffering from loss of income which is compounded by the further burden of huge costs being incurred toward repairs. 5. Countering the arguments, Shri Jagdish Singh, learned DR, submitted that the classification of the impugned goods has been considered by the World Customs Organisation, Brussels; that the Director, Nomenclature Classification Directorate, World Customs Organisation has informed, under letter dated 8-1-1996, that the Deepsea Matdrill is classifiable under sub-heading 8905.20. He further menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petroleum and Natural Gas, Government of India whereas the certificate produced by the Applicant has been given by the Additional Director (E.C.) of the Directorate General of Hydrocarbons under Ministry of Petroleum Natural Gas. He also submitted that the demand is not time barred as the Customs have at no stage assessed the Bill of Entry and the goods had been removed on the basis of an interim order dated 24-8-93 passed by the Commercial Sub-Judge; that under Sections 17 and 47 of the Customs Act, the proper officer has to assess the goods to duty and has to make an order permitting clearance of the goods for home consumption; that Section 2(34) of the Customs Act defines Proper Officer , in relation to any function to be performed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n were assessed and ordered to be removed by the Customs. In view of this, prima facie the Applicants have not made out a case of demand being time barred. However, they have made out a prima facie case for availment of Notification No. 196/89-Cus. The Applicants have also pleaded undue hardship on account of repair etc. of the impugned goods which in our view is in the normal course of business and should not come in the way of Government getting its due revenue. We, therefore, direct the Applicants to deposit Rs. 3 crores towards duty on or before 30-8-2003 and on complying with this direction, there will be waiver of pre-deposit of remaining amount of duty and entire amount of penalty and the recovery of the same will remain stayed durin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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