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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 ..... 9-02-2003 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 reasonable opportunity of being heard. 4. The Commissioner of Customs(A), Ahmedabad vide his Order No.156/2003(56-JMN) dated 25.07.2003 rejected the appeal of the importer holding that [1] duty on foodstuff and provisions are to be levied [2] levy of duty on bunker /fuel and oil, the importer has not shown conclusively the quantity of fuel and oil which was kept in engine room, thus the CESTAT s Order reported at 2003(151) E.L.T.636(Tri.- Del.), would not be applicable to the importer s case, [3] issue regarding abatement of value in respect of liquor and cigarettes was not considered as the importer has failed to give any evidence with reference to value of such items. 5. Being aggrieved by the OIA of the Commissioner (A), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 authority for decisions: i) Whether a new levy @ 4% SAD in terms of Notification No.56/98-Cus dated 01.08.98 as amended by Notification No.28/99-Cus dated 28.02.99 is to be levied on the vessels imported for demolition or otherwise; ii) Whether duty on fuel and oil declared in the Engine Room tanks is to be levied separately classifying the same in their appropriate heading in terms of Board s Circular No.37/96-Cus dated 03.07.96 or otherwise; iii) Whether duty on foodstuff(consumable goods} on board the vessel imported for demolition is exempted in terms of Section 87 of the Custom Act, 1962 or otherwise; iv) Whether abatement in the value of the vessel correspondi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 engines. Hence, they have to be classified under Chapter Heading 2710 as remaining fuel and oil as per paragraph (d) of Circular No.37/96-Cus dated 03.07.96. d) The Mumbai Bench of the Hon ble Tribunal in its order No. C-II/288-89/WZB/2001 dated 10.05.2001 in case of M/s. Apollo Vikas Steel Ltd. Have taken cognizance of the fact that the fuel and oil in engine room tanks are pumpable and cannot form part of engine and relied upon its own decision in case of m/s. Bhikkamal Chhotemal Order No. C-II/3602-05/WZB/2000 dated 07.12.2000 The same view has been taken by the Hon ble CESTAT, Mumbai in its Order No.C-I/3125-94/WZB/2001 dated 12.10.2001 in similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Iron & Steel Co. Pvt.Ltd. 1995 (98) Sales Tax Cases 202-Bom. The Hon'ble High Court, in that case, observed that the ship was condemned and unserviceable at the time of sale, which was under the agreement for breaking and scrapping purposes . The condemned and unserviceable ship purchased by the dealer was not a ship but re-rollable scrap in the form of an old ship for dismantling. In effect, the dealer acquired only the old materials and articles contained therein which were sold by it in the form in which they were acquired. No process whatsoever was applied to the goods, much less any process of manufacture. Accordingly, Hon'ble High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 case of Ghaziabad Ship Breakers referred supra. 16. As regards other issue, we note that though no serious arguments were raised in respect of the same, nevertheless we find that the said issue stand decided against the appellant by the Tribunal s decision in the case of Ghaziabad Ship Breakers referred supra. It was held that the drinks and foodstuff not to be treated as ship stores, covered by Section 87 of Customs Act, 1962 and have to be classified in their own appropriate headings. Similarly, fuel and oil contained in the engine room tanks have to be classified in their respective headings, in terms of Board s circu ..... 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