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TMI Blog2011 (5) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a Bill of Entry ON 11.10.99. The same was assessed for duty of Rs.2,86,70,425/- (Rupees Two Crores, Eighty Six Lakhs, Seventy Thousands, Four Hundreds and Twenty Five Only) on 03.11.99. The said Bill of Entry was assessed without extending the benefit of Notification No.22/99-Cus, dt.28.2.99 under which Special Additional Duty (SAD) under Section 3A of Customs Excise Tariff Act, 1985 was exempted subject to declaration by the importer that the imported goods were for sale as such and such sale was not from the area where no tax was chargeable to sale or purchase of the goods. 2. The importer preferred an appeal before Commissioner of Customs (Appeals), Ahmedabad. The Commissioner(Appeal) vide Order-in-Appeal No.12/2003 dated 19-02-2003 dismissed the appeal holding that the appeal is against assessment of Bill of Entry, the appellant may seek on appealable order or may file refund claim. 3. Being aggrieved by the said OIA, the importer preferred an appeal before the Hon ble CESTAT, New Delhi. The Hon ble CESTAT, New Delhi vide Order No. 292/03-B dated 24-4-2003 remanded the matter to the Commissioner (A) for deciding the matter on merit after affording the reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry within 45 days from the date of receipt of order, affording the proper opportunity to the importer to represent their case and also hear them if they so desire. Hence the work relating to re-assessment of the Bill of Entry took on hand. 9. Subsequently, the Superintendent vide his order dt.21.04.06 held as under: a) SAD @ 4% is to be levied on the vessels imported for demolition in terms of Notification No.56/98-Cus, dt.1.8.98 as amended. b) Duty on fuel and oil levied correctly in terms of Board s Circular No.37/96-Cus, dt.3.7.96. c) Duty on foodstuff and consumable stores under Section 87 of Customs Act, 1962 is not to be exempted on the vessels imported for demolition as it lost the character of foreign going vessel, the moment it is imported. d) Abatement in value of the vessel, corresponding the value of the prohibited goods like cigarettes and liquor surrendered to the Customs authority, is not to be allowed while arriving at the assessable value of the vessel. The appeal against above order did not find favour with the Commissioner(Appeals). Hence, the present appeal. 10. It is seen that the following were the issues before the adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be classified along-with the vessel in Chapter Heading No.8908, whereas the audit observed that these items have to be classified separately in their appropriate headings for the purpose of levy duty. Central Board of Excise and Customs, Delhi, in this scenario, referred the matter to the World Customs Organization Brussels. World Customs Organization Brussels have given the classification of the same items. The Board in terms of WCO s advice issued the Circular No.37/96-Cus dated 03.07.96 and classified the items imported on board the vessel for demolition. The relevant paras of Board s said circular is reproduced below for easy facilitation. b) Fuel and oil contained in the vessel s machinery and engines can also be regarded as forming integral part of the vessel and hence be classified under Heading 8908. d) Remaining fuel and oil (other than that mentioned in sub para (b) above and other ship stores, including drinks and foodstuff are classifiable separately in their own appropriate headings. It is thus, clear that the fuel and oil, which have been assessed to duty under the Chapter Heading 27.10 were in tanks and were not contained in the vessel s machinery and engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall take delivery of the vessel but excluding the master s officers and crew personal effect and belongings Master s slope chest and the deck engine log books also the items and exclusions if any will be advised later on and hired items removals to be excluded from the sale. The bonded items surrendered to the Customs authority is part and parcel of the Master s slope chest and the said items have been excluded from sale. Naturally when the items are excluded from the sales and accordingly they are excluded from the consideration. Under the circumstances, the importer has not made any payment with reference to these items the abatement of the value is thus not allowable. 12. Ld.Advocate Shri A.D. Maru, appearing for the appellant submits that the ship imported by the appellant was old and unserviceable ship and as such, the same cannot be considered to be a ship but the same was re-rollable scrap in the shape of ship. As such, the appellants having purchased the scrap and having sold the same as such, the exemption of SAD denied to them, was not proper. He draws our attention to Bombay High Court decision in the case of Commissioner of Sales Tax, Maharashtra State Vs. Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where as the Tribunal s decision in the case of Ghaziabad Ship Breakers is on the same issue of exemption from SAD in respect of imported ship for the purpose of breaking, the issue involved in the judgment of Hon'ble Bombay High Court was altogether different. In fact, that case was under the provisions of Bombay Sales Tax Act and the interpretation involved was in respect of provisions of Section 2/26 of Bombay Sales Tax Act, 1959. Admittedly, the question of applicability of or exemption from SAD in terms of provisions of notification in question issued under the Customs Act was not the subject matter of Bombay High Court judgment. It cannot be held that Tribunal s decision in the case of Ghaziabad Ship Breakers and Hon ble Bombay High Court are holding two contrary views in respect of the same issue, so as to adopt the decision of Hon ble Bombay High Court. Inasmuch as we find that the Tribunal s decision is in respect of same very issue, we find no reasons to take a different view. We, accordingly, hold that exemption from payment of SAD in terms of Notification No.56/98-Cus,dt.1.8.98 as amended, is not available to the appellant. In the light of the law declared in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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