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TMI Blog2015 (10) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... l in question was passenger vessel – Thus it was clear that these items were not part and parcel of vessel and if they were so, they would have been brought on record and declared as ship stores –Hence these items were nothing but ‘cargo’/ ‘goods’, which ought to have been declared in IGM – No material available on record that these items were kept in vessel from other source and that appellant had paid any amount for seized goods – Demand of duty on these seized items separately can not be sustained which was already included in MOA price as per agreement on lumsum basis – Thus, there was no mis-declaration on part of appellant – Therefore impugned order can not be sustained – Decided in favour of Appellant. - Appeal No. : C/207,223/2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso to Section 28(1) of the Customs Act, 1962 alongwith interest under Section 28AB of the said Act and to impose penalty. It has been alleged that the seized goods were not declared in the Cargo declaration in the said IGM. Further, these goods were also not included in the Bill of Entry and these are rendered liable to confiscation under Section 111(iii) (f) and 111(l) of the said Act. By the impugned order, the Commissioner of Customs confiscated the seized goods, which have already been provisionally released and are not available for confiscation, imposed redemption fine of ₹ 20,000/- and ₹ 1,00,000/-. It is also ordered that the said goods should be assessed finally as per the revised valuation and as per prescribed proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during rummage. He drew the attention of the Bench to the relevant portion of the adjudication order to substantiate that the seized spare chimney and ship spares were used in the oil field, whereas the said vessel was a passenger vessel. So, these items are not form part and parcel of the vessel and the adjudicating authority rightly assessed the value of these items and demanded duty separately. It is further submitted that these items were not declared in their IGM and bill of entry and liable for confiscation under Section 111 of the said Act. 5. After hearing both the sides and on perusal of the records, we find that the appellant purchased vessel RITA for ship breaking purpose vide Memorandum of Agreement dated 23.6.2005. The rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HEREINABOVE. 03. (i) to (iii). (iv) COPY OF THE TELEX/ FAX FROM THE SELLERS VIA THEIR AGENTS IMCORPORATING INSTRUCTIONS TO THE MASTER OF THE VESSEL TO PHYSICALLY DELIVER THE VESSEL TO THE BUYERS OR THEIR NOMINATED REPRESENTATIVE ON AS IS WHERE IS , BASIS AT A SAFE ANCHORAGE AT SOSIYA/ ALANG NOT LATER THAN 15.07.2005 ON CONDITION YHSY, SHE IS SAFELY AFLOAT. PORT WORTHY, FREE OF LEAKAGES, FREE OF ARMS AND AMMUNITIONS, FREE OF CARGO, CHARTER FREE AND UNDER TOW. 04. THE SELLERS SHALL TENDER THE NOTICE OF READINESS TO DELIVER AND THE BUYERS SHALL TAKE DELIVERY OF THE VESSEL ON AS IS WHERE IS BASIS AT A SAFE ANCHORAGE AT SOSIYA/ ALANG NOT LATER THAN 15TH JULY, 2005 AT SELLER S OPTION, BUT NOT BEFORE 23RD JUNE, 2005 HOWEVER CANCELLING ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livered the vessel on AS IS WHERE IS basis at a safe anchorage on condition that vessel is safely afloat, port-worthy, free of leakage, free of arms and ammunition, free of cargo, charter free and under tow. Clause 10 of the agreement stipulates that vessel was delivered to the appellant on AS IS WHERE IS basis and whatever spares available on the vessel would be the property of the appellant. It has negotiated the price on the basis that all stores and equipments lying in the vessel are included in the MOA price. In fact, any spares, stores and equipments available in the vessel would be the property of the appellant and no extra consideration would be paid by them. The MOA price is lump-sum amount. There is no dispute that seized good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been declared in the IGM. 8. We find that there is no dispute on genuineness of the MOA dated 23.6.2006 between the parties. The appellant purchased the vessel MV RITA for ship breaking on AS IS WHERE IS basis and the seized goods were lying in the vessel. Clause 17 of the Agreement categorically stated that all stores are equipment lying in the vessel are included in MOA price. So, the contracted MOA price is to be accepted, as the Department has not pressed undervaluation by showing the transaction value not being genuine. There is no material available on record that these items were kept in the vessel from other source. Hence, the findings of the Adjudicating authority has no relevancy. It is also noted that the terms of the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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