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TMI Blog2011 (6) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... y, rejected X X X X Extracts X X X X X X X X Extracts X X X X ..... its Final Order No. 53/2006-Cus., dated 23-1-2006 remanded the same to Commissioner (A). 8. The Commissioner (Appeals) vide their OIA No. 30/JMN/2006 dated 25-2-2006 in terms of CESTAT's above referred order allowed the appeal by way of remanding the same to the Superintendent of Customs, Alang for the purpose re-assessment with a direction as contained in the said OIA and to re-assess the subject Bill of 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 dated 21-4-2006 held as under : (a) SAD @ 4% is to be levied on the vessels imported for demolition in terms of Notification No. 56/98-Cus., dated 1-8-1998 as amended. (b) Duty on fuel and oil levied correctly in terms of Board's Circular No. 37/96-Cus., dated 3-7-1996. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sels for demolition have not found place in the said notification as they are not sold as such but they are broken, material obtained by the and sold. (c) With reference to levy of duty on fuel and oil contained in the Engine Deptt. In this connection, it is to submit that the issue with reference to classification of moveable gears, fuel & oil and other consumable stores was under dispute. The department was of the view that the items should 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 3-7-1996 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 as per the procedures laid down in the Indian Customs Law. Further, the said matter also relinquished ownership, right and title over the goods surrendered. These bonded liquors and cigarettes were surrendered to the Customs before handing over the delivery of the vessel to the importer. Further, Memorandum of Agreement dated 13-9-1999 entered into between the importers and last voyages Inc London (UK) also referred. On referring clause 4, it is observed that the seller deliver and the buyer shall 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. Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Electric & Machinery Corporation v. CCE, Ludhiana - 2004 (166) E.L.T. 276 (Tri.-Del), laying down that in the case of a conflict in Tribunal's Larger Bench decision and Hon'ble High Court decision, Hon'ble High Court's view is required to be preferred to that of Tribunal. 15. We find that there can be no quarrel about above legal position. In case of conflict between the Tribunal's decision and Hon'ble High Court's judgment, admittedly, Hon'ble High Court's judgment would prevail over. In the instant case, we find 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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