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TMI Blog2014 (4) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... i Port Jamnagar and filed a bill of entry giving the following description:- One unit old and used Casino vessel, 'Pride of Goa' (Formerly known as (Southern Star-II), Built in Dec. 1994 in Louisiana (USA), 66.1 mtrs length, 23.8 mtr Breadth, 4.5 mtrs Dosta, CRT:3546, MRT:1089, including apparel, appurtenances and all other parts, machineries equipment and accessories and all other parts, machineries equipment and accessories inside (838-Casino Machines and Casino-Game Tables & Accessories, Surveillance Systems including 15 Monitors & 5 Recording Devices, Casino safe Deposit Systems, Weather Dock Chairs & Tables). The classification of vessel POG was claimed by the importer as CTH 89011010 and was assessed to Nil rate of duty under Notification No.21/2002-Cus, dt.01.03.2002 (Sr.No.352). An intelligence was received by DRI to the effect that classification of POG by the importer has been mis-declared as CTH 89011010 instead of CTH 89039990 and that importer also mis-declared the value at the time of import to evade payment of Customs duty. After detailed investigation, a show cause notice, was issued to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the structure of POG to the ship M.V. Southern Star in M/s Waterways Shipyard case as per his written submissions filed during the course of hearing. It was also his case that the following case laws were not cited before the Mumbai Bench in the case of Waterways Shipyard case:- a) Vipul Shipyard, Bombay Vs CCE Bombay [1985 (19) ELT 122 (Tribunal)] b) CCE Baroda Vs Vipul Shipyard [1996 (88) ELT 640 (S.C.)] c) UOI Vs V.M. Salgaoncar & Bros. (P) Ltd. [1998 (99) ELT 3 (S.C.)] d) CGV Logistic Ltd Vs CC (I) Mumbai [2011 (274) ELT 75 (Tri-Mumbai) ] (v) That end use of the vessel is not the determining factor for classification of a vessel under CTH 8901 as per Apex Court's decision in the case of UoI Vs V.M. Salgaoncar case (supra). That as POG is designed to carry the passengers, therefore, the same is correctly classifiable under CTH 8901 as a passenger ship specially designed to carry passengers, on the basis of certifications done by various authorities under the Merchant Shipping Act 1958. Ld. Advocate especially made the Bench go through the definitions given in the Merchant Shipping Act, Section 3(1), (13), (18), (24), (25), (38), (39), (45), (47A), (47B), (47C) and (55) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Lading which was submitted with the Bill of Entry (Page 572) clearly provided that freight was paid. The copy of the other Bill of Lading was never submitted by the appellant to the Customs. The appellant was not at all aware about the existence of second Bill of Lading. In any event in this purported Bill of Lading there was a reference to Contract No.10108 dated May 07 2007. No such contract ever existed. No enquiry was conducted in this regard by the DRI. The appellant was never asked about the execution of any such contract with supplier. On the contrary, when Shri Ashok Khetrapal, the Director was queried about the existence of another Bill of Lading Shri Ashok Khetrapal in his statement dated 21.11.2011 (Page 555/Vol.II) categorically stated that they did not hide anything from the Customs and had paid under C&F for the import of this vessel. (x) That insurance cover of POG was taken on higher side after clearance and on account of additional equipments fitted on the vessel after the clearance from the Customs. 4. Shri Raju, Commissioner (A.R.) and Shri K. Sivakumar, Addl.Commissioner (A.R.) appearing on behalf of the Revenue, inter alia, made the following submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that it was intended to be made stationary at Goa and was not moving from one place to another place in the sea/river. 5.1 On the issue of classification of the vessel POG, the adjudicating authority has mainly relied upon the fact that the vessel is a Casino vessel and is intended to be made stationary for use as a casino even if it is capable of making voyages in the open sea. On the other hand, importer has come out with the argument that the end use of the vessel should not be made as the basis for classifying a vessel under the Customs Tariff Act. This issue, whether end use of imported goods should be made the basis of classification was decided by Hon'ble Apex Court in the case of UoI Vs V.M. Salegaoncar & Brs (P) Ltd (supra). In that case, appellants imported transhippers which were vessels used for carrying cargo loaded from the harbour and carry the same for unloading cargo into the large vessels. The issue before the Apex Court was whether such transhippers should be considered as ocean going vessels when they were not actually meant to be going to high seas/oceans. While holding the transhippers to be ocean going vessels and eligible to exemption under Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a passenger has to be carried from once place to another in a ship in order to hold that a vessel is a 'passenger ship'. A person taken on board a vessel will also be considered as a passenger as per the above definitions. Various certificates issued by the competent authorities in favour of POG, as per Section 3(38) of the Merchant Shipping Act 1958, also convey that POG is a passenger ship. It is observed from Para 3 of the order passed by CESTAT Mumbai in the case of CGU Logistics Ltd Vs CC (I) Mumbai [2011 (274) ELT 75 (Tri-Mum)] that similar certificates were considered for classifying a vessel as cargo ship of CTH 8901 when special equipments were fitting on it for doing special tasks and Revenue was claiming the classification under CTH 8905. 5.3 It is further observed from the HSN explanatory notes under Heading 89.03 that the notes talk of all vessels for pleasure or sport. However, while specifying the inclusions mainly the notes talk of small boats like rowing boats, canoes, sail boats, motor boats, dinghies, sports fishing vessels, inflatable craft and boats, lifeboats propelled by oars, Yachts etc. At the same time, neither the Customs Tariff Act nor the HSN Explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to hold that POG is not a passenger ship designed to carry passengers when no contrary opinion of another competent authority is brought on record saying that POG is a vessel for pleasure or sport. 5.6 Temporary use of POG in a stationary position will not change the classification of POG when the same is capable of moving across the seas/oceans but has to be mostly made stationary due to the restrictions imposed by the local laws. It will be a strange situation to classify a vessel under CTH 8901 if used for making trips to open sea, with a night halt arrangement in the sea, but classify the same vessel under CTH 8903 if used in a predominantly stationary position. In view of the above observations, we are of the opinion that Casino vessel POG imported by the importer is principally designed to carry passengers and has been correctly assessed under CTH 8901. 5.7 Another argument taken by the importer appellant is that once original assessment is made on a bill of entry is not challenged then no further demand can be raised afterwards on the same issue. Importer has relied upon several case laws in support of this argument as indicated in Para 3(ii) above. Hon'ble A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund, the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which if we may term it so is in the nature of execution of a decree/order. In the case at hand it was specifically mentioned in the order of the Assistant Collector that the assessee may file appeal against the order before the Collector (Appeals) if so advised. 5.8 In the absence of any new facts unearthed by the investigation to indicate fraud/willful mis-statement in the declared description given on the bill of entry with intention to evade duty, the classification of POG already made by the Revenue becomes final and can also not be opened by the Revenue by way of demand under Section 28 of the Customs Act, 1962 invoking exten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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