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TMI Blog2011 (6) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... , the vessel may be stationary, but this would not ipso facto detract from classification of the vessel as a cargo ship under Heading 8901. vessel is held classifiable under Heading 8901. appeal is allowed X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved, the assessee preferred an appeal to the Commissioner (Appeals) and the latter agreed with the decision of the lower authority. Hence the present appeal of the assessee. 2. The miscellaneous application filed by the appellant is for issuance of a direction to the assessing authority to dispose of the importer's application under Section 149 of the Customs Act for amendment of the Bill of Entry. That application, which sought to amend the declared value of the goods, is, apparently, pending with the original authority. It was filed subsequent to the passing of the impugned order. 3. Heard both sides. The learned counsel for the appellant has relied on the following documents in support of the appellant's plea that the vessel imported by them is a "cargo ship" liable to be classified under Heading 8901. (i) 'Certificate of Class' issued on 16-7-2008 by the Managing Director, Indian register of Shipping (wherein the vessel, viz. "BULK PROSPERITY" is described as "Bulk Cargo Transhipper", deck strengthened for heavy cargoes, cargo handling, inwater survey); (ii) 'Cargo Ship Safety Construction Certificate' issued on 15-7-2008 by the Principal Officer-cum-Joint DG (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in stationary condition. According to the learned counsel, an ocean-going vessel should necessarily be designed to carry out its primary function while in navigation. To this extent, support is claimed from the Supreme Court's decision. 4. The learned counsel has also submitted that a similar transhipper imported at Goa port in January 2006 was assessed to 'nil' rate of duty under Heading 8901 and that the assessment has been accepted by the department. In this connection, reference is made to Bill of Entry No. 432 dated 19-1-2006, which was filed in respect of "M.V. GOAN PRIDE" and described the goods as "second-hand vessel for transport and transhipment of goods (bulk carrier - transhipper)". It is submitted that the benefit of Notification No. 21/2002-Cus., (serial No. 352) was allowed to the importer of "GOAN PRIDE" by the assessing authority at Goa Customs. Similar benefit is, therefore, liable to be granted to the appellant in respect of "BULK PROSPERITY". 5. The learned SDR has submitted that the vessel was designed for discharging dry bulk commodities from bulk carriers into its own holds and then discharging the commodity into small barges through a dedicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r attention to the relevant HSN Notes which indicate that Heading 89.05 covers "Light-vessels, fire-floats, dredgers, floating cranes, and other vessels the navigability of which is subsidiary to their main function". The Note further says that these vessels normally perform their main function in a stationary position. As "BULK PROSPERITY" was designed to perform its function mainly in a stationary position, SDR argues, it should be classified under Heading 8905. 7. In his rejoinder, the learned counsel for the appellant has also referred to the literature downloaded from internet by the SDR. He points out that, in two out of the three modes of transhipment described in the literature, the transhipment vessel navigates as part of its function and hence cannot be classified under Heading 8905. In this connection, he has also claimed support from the Hon'ble Supreme Court's judgment in Simpson & Co. Ltd. v. CCE - 1997 (95) E.L.T. 166 (S.C.), wherein the court, upholding the Tribunal's decision on classification of I.C. engines for fitment to forklift trucks, held that forklift trucks were vehicles for transport though they moved only limited distances. If forklift trucks which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it remains stationary at the initial and final stages of the process of transshipment and navigates at the intermediary stage. These modes of transshipment are also not seen discussed in the orders of the lower authorities. Both the orders were accepted by the Revenue. 9. That the vessel in question is used as a transhipment vessel transhipping cargo in all the aforesaid modes is not in dispute. That it is an ocean-going vessel as per the judgment of the Hon'ble Supreme Court is also a fact accepted by the Revenue. The various documents produced by the appellant described the vessel as "cargo ship", "general cargo ship", "transhipper" etc. The certificates issued by the Mercantile Marine Department are also significant in this regard. 'Cargo ship' is specifically classified under Heading 8901 irrespective of the extent or degree of its navigability. The HSN Note under Heading 89.01 says that this Heading covers all vessels for the transport of persons or goods other than vessels of Heading 89.03 and life boats, troop ships and hospital ships of Heading 89.06. HSN Heading 89.01 also includes cargo vessels of all kinds (other than tankers and refrigerated vessels) whether or n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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