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TMI Blog2006 (2) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, with the said equipment, at Sikka Port in India on 27-12-1998. Duty exemption was claimed by classifying the barge under Heading 8901.90 and Notification 20/99-Cus., dated 28-2-1999 along with diving equipment so welded on to the barge. The barge was granted exemption and the barge was working at Sikka Port for eight months from 27-12-1998 to 27-8-1999. 2. (a) The Deputy Commissioner of Customs observed that the barge with equipment welded on to it was more appropriately to be classified under Heading 8905.20 as floating or submersible drilling or production platform which was not exempted from duty vide Notification No. 20/99-Cus., dated 28-2-1999 and had called the proprietor of M/s. Gujarat Shipping Services, the sub-agent of the appellants to make payment of Customs duty with interest. The matter was taken up with the Chief Commissioner of Central Excise, Vadodara and the Central Board of Excise Customs. In the meantime, the barge had completed its mission in August, 1999 and on expiry of the charter was to leave for UAE. They got port clearances and submitted the barge sailing readiness confirmation. However, on 27-8-1999, the Customs Officers seized the barge when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t goods for home consumption and no bill of entry is required to be filed are not correct. Regarding the diving equipments forming the part of the gears of barge, following points were noted (i) it is seen that the diving equipment belong to M/s. Fraser Diving International Ltd., and the barge Regina 250 belong to another company named Valentine Marine L.L.C., Abu Dhabi. As per the list of equipment submitted by the Incharge of Regina-250, which gives a detailed description of machinery/equipment on board Regina 250, these diving equipments were nowhere mentioned. (ii) There is separate staff working separately for these diving equipments. The equipments were also managed and operated upon by Mr Larry-Pratt the diving Superintendent. The list of equipments were also submitted separately signed by Shri Larry Pratt. (iii) No person of the barge Regina 250 was working with diving equipment. The diving equipments were being operated by the separate team of workers for the owners of the diving equipment i.e. Fraser Diving International. (iv) As per the statement of Shri George Johnson, the diving Superintendent and incharge of all the work done with the diving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 250. Further, the parts of any ocean going vessel can be imported duty free as per Sr. No. 297 299 of the Notification No. 17/2000 dated 1-3-2000. M/s. Saipem U.K. Ltd. could have also availed the benefit of above notification by declaring diving equipment as parts of the Gal Constructor. In their defence reply, the noticees have contended that the statement of Shri George Johnson being a foreign citizen and not being conversant with Indian law cannot be relied upon. I find that the statement of Shri George Johnson, Diving; Superintendent has been relied upon only to bring out certain factual aspects regarding the diving equipment. The diving equipments on board of Regina 250 S-4 Diving Equipment and diving equipment on board Gal Constructor was S-5 system. Both of which belong to Fraser Diving International. Shri George Johnson - diving superintendent, was in charge of the work handled by M/s. Fraser Diving International Ltd., Dubai at Sikka. Further, the noticees have contended that the barge Regina 250 was working for underwater works from 27-12-1998 at Sikka for eight months and the Customs Officers were visiting the barge frequently on preventive checks and inspection a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962 and consequently, Derric Lay Barge Regina-250 of Panama Flag having been used for carriage of the said goods is also liable for confiscation under Section 115 of the Customs Act, 1962. I further find that incharge superintendent of Derric Lay Barge Regina-250 and his agent M/s. Gujarat Shipping Services, Jamnagar have suppressed the facts and thereby knowingly evaded customs duty. Thus, they are liable to personal penalty under Section 112 of the Customs Act, 1962. In view of the above, I pass the following order :" The confiscation of the said barge under the provisions of Section 115 of the Customs Act, 1962 and appropriation ordered of an amount of Rs. 5.00 lakhs towards realization of the fine from the Bond executed at the time of provisional release. Since duty was found to be evaded by suppression of facts, penalty equivalent to Rs. 21,95,520/- under Section 114A was also imposed along with penalty of Rs 1.00 lakhs on Shri Gerald James Armayo in terms of Section 112 of the Customs Act, 1962 and also a personal penalty of Rs 25,000/- on M/s. Gujarat Shipping Services. Hence these appeals. 3. The classification of a barge with the said equipment welded on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... range of equipment, for use in the vessel fitted or not to be included and covered when read with Section 86(1) of the Customs Act, 1962. The definition does not stipulate ownership boundaries to be material. The test is for use in a vessel and that test is not in context used in the vessel as equipment was found in use on/in the vessel, in tandem with other equipment on other vessels, or stand alone. Duty and confiscation liability as arrived is therefore not sustainable. 5. The confiscation liability and duty liability is also not upheld since Diving Equipment is claimed to be exempt under Notification Sr. No. 297 and 299 which was made before the Commissioner and no finding in that regard has been arrived at by the Commissioner refuting such a claim. 6. No prohibitions, as regards the said equipment, to call for confiscation under Section 111(d) are found. As regards liability for non-mention under import manifest i.e. Section 111(f), as arrived, the same cannot be upheld, since there is no categorical specific finding arrived at of any provision of Import Manifest (vessels) Regulations, 1971. As regards violation of Section 111(i). The violation can be for non-mentio ..... 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