2010 (12) TMI 120

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..... ., Port Louis (hereinafter referred to as foreign seller) on 22nd October 2001 wherein the seller thereby agreed (for a consideration of US$ 536928.19) to sell, free of all liens and encumbrances, and the buyer thereby agreed to buy, on terms and conditions set forth in the agreement.  The crucial clauses of the agreement were as under:  (i) Clause 3: The buyers have accepted the said vessel without inspection and the sale is therefore definite and outright subject only to the terms and conditions and exceptions of this agreement. (ii) Clause 9: If the buyers fail to establish the letter of credit on or before 22nd October 2001 as described herein and/or should the purchase money not be paid as aforesaid and/or default be made .....

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..... the Tribunal in the first round of litigation and this Tribunal vide order No.A/792-293/WZB/2004/C-II dated 31.08.04 remanded the matter to the Commissioner (Appeals) to decide the valuation as well as the refund claim afresh.  3.         The Tribunal while remanding the matter observed there is no material change in the ship fitments to be missing from the ship.  The ship was found for suitable for sale and for delivery at Lous Port and brought to Alang port on 19.10.01.  If, thereafter, certain goods were found missing from the ship, then the provision of Section 13 of the Customs Act would come into play.  The Tribunal also observed that duty liability cannot be simply wished a .....

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..... items and therefore the appeal has to be allowed and refund claim also has to be allowed.  5.         We have considered the submissions made by Shri Bharat Parekh.  First of all we find that the learned Commissioner (Appeals) in the impugned order has observed that the value of the extra items missing is only Rs. 3,00,000/- which is much less than Rs. 28,00,000/- reduction made in the sale price.  He has also observed that the survey was carried out only on 08.11.01 whereas the price reduction was affected on 24.10.01 when neither the appellant nor the foreign seller could have known any extra removals from the vessel.  These observations and also the observations of the Tribunal .....

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