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TMI Blog2015 (12) TMI 1579X X X X Extracts X X X X X X X X Extracts X X X X ..... o inadvertence – at some page it was mentioned as “Ocean Going Utility-cum-Offshore Supply Vessel” while in other it was described as “Steel Tug MV NAVIS SUCCESS”. In the same agreement “Supply Vessel” was mentioned and the same gets confirmed on the basis of other various certificates, which establish that the Steel Tug was mentioned due to inadvertence. Therefore when statutory bodies classified the vessel as ‘Supply Vessel’, no weightage can be given to an inadvertent mistake appearing in MOA. Printout of various website - vessel categorized as Offshore Tug/Supply Vessel. Held that: - the website is neither of the supplier nor of the appellants, it is maintained by some third party. Moreover when there are many statutory authorities certified the subject vessel as Supply Vessel, only unauthenticated website data can not be given credential. Chartered Engineer’s report - from any material it could not be proved that the vessel has ever used as Tug. On the contrary, ample of evidences prove that the vessel is ‘Supply Vessel’ and used as ‘Supply Vessel’. As regard Winch on the vessel, this alone is not sufficient to conclude the classification of the vessel as Tug. Even thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation regarding the subject vessel Happy Success was obtained from the Internet website wherein it was noticed that the category of the vessel was stated to be a Tug whereas documents submitted by the importer of the vessel mentioned the category of subject vessel as Offshore Supply Vessel , hence the Asst. Commissioner of Customs Special Investigation and Intelligence Branch (Import) ordered to conduct physical survey of the vessel to ascertain the proper category/type of the subject vessel. In this regard the Commissioner of Customs (Import) appointed a Chartered Engineer M/s. Sai Siddhi Associates under a letter dated 23-12-2011. The Chartered Engineer surveyed the vessel and submitted their inspection/survey report vide letter bearing reference No. SSA/CEC/VALUE/HAPPY SUCCESS/1021/2011-12, dated 26-12-2011 wherein he stated as under :- The vessel was built in 1974 fitted with one number SMATCO-Winch-Double Drum and in past it was rated to have pulling capacity 30 tonnes. The drums were found jam, rusty, the metal was eaten away and appears to be not being used with lack of preventive as well as routine maintenance, application of lubricants, oiling greasing etc. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a supply vessel and not as a Tug . The vessel, on the request of the appellant was released on provisional basis on filing of manual Bill of Entry No. 04, dated 9-1-2012 declaring the vessel Happy Success as supply vessel and classified the same under CTH 8901, the said bill of entry was assessed provisionally by the appraising group on execution of bond along with bank guarantee. The appellant paid customs duty as a condition of provisional release. From further investigation, it was revealed from the print out of the website pertaining to ship and shipping company data base on 1-12-2011 that vessel Happy Success IMO No. 7375753 was a Tug . A statement of Shri Sanket Eknath Nare, One Inspector of Chartered Engineer, M/s. Sai Siddhi Associates Mumbai was recorded under Section 108 on 2-3-2013 wherein Shri Sanket Nare stated that the vessel Happy Success is built as a Tug . In view of above investigation a show cause notice No. SG/INV-60/WB/2011/SIIB(Import)/SG/Misc-92/WB/2011SIIB (Import), dated 21-10-2013 was issued wherein the vessel Happy Success was proposed to be classified under CTH 8904 as tug and also proposed the confiscation, demand of customs duty, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent authorities after conducting the survey and thereafter it was certified the vessel as Supply Vessel . Therefore the reliance of the ld. Commissioner only on internet print out and statement of one inspector, Shri Sanket which is contrary to the certificate issued by the Chartered Engineer cannot be the basis for deciding the classification. The ld. Commissioner also taken support from the memorandum of agreement between seller of the vessel and the appellant wherein vessel was shown as a Tug. He submits that it was mentioned inadvertently therefore the same cannot be taken as conclusive evidence. In view of the above position it is clear that subject vessel Happy Success is offshore supply vessel and not a Tug and accordingly merits classification under CTH 8901 and not under 8904 as held by the ld. Commissioner. In support of his submission ld. Counsel placed reliance on following judgments : (a) CGU Logistic Ltd. v. Commissioner of Customs, Mumbai [2011 (274) E.L.T. 75 (Tri.-Mum.)] (b) Hull Offshore Ltd. v. Commissioner of Customs (Import), Mumbai [2014 (303) E.L.T. 119 (Tri.-Mumbai)] (c) Prince Marine Transport Services Pvt. Ltd., Hasim Abdul Raz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years therefore show cause notice itself is time bar. He submits that as soon as the vessel was converted from foreign to Indian coastal run vessel on arrival at port the IGM and bill of entry was filed in respect of the said vessel. In the Shipping Agency s letter dated 6-11-2006 it is very clear that the IGM and bill of entry was filed for the first time after conversion therefore if at all the customs department is of the view that bill of entry is required to be filed, nothing prevented the Department from the said action. In view of this, there is complete disclosure of the fact regarding the import of said vessel, Happy Success to the customs department. Therefore there is no suppression of facts on the part of the appellant, for this reason also the show cause notice issued much after five years is time bar. In this support he placed reliance on the judgment of Montana Valves Compression Pvt. Ltd. v. Commissioner of Customs, Mumbai [2000 (116) E.L.T. 220 (Tribunal)]. 4. On the other hand, Shri M.K. Sarangi, ld. Joint Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the vessel was declared as offshore s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbai [2001 (135) E.L.T. 625 (Tri.-Mum.)] (b) Sachidananda Banerjee, ACC v. Sitaram Agarwala [1999 (110) E.L.T. 292 (S.C.)] (c) Commissioner of Customs v. Jagdish Cancer Research Centre [2001 (132) E.L.T. 257 (S.C.)] (d) Commissioner of Customs (Pre.), Mumbai v. M. Ambalal Co. [2010 (260) E.L.T. 487 (S.C.)] (e) Shipping Corporation of India v. Commissioner of Customs (Import), Mumbai [2014 (312) E.L.T. 305 (Tri.-Mum.)]. 5. We have carefully considered the submissions made by both sides. 6. The main issue to be decided by us is the classification of the vessel and consequential fines, penalties. The ld. Commissioner for holding the classification of the vessel Happy Success under CTH 8904 relied upon the following evidences : (i) Memorandum of agreement dated 14-3-2006 between the seller of the vessel and the appellant wherein the vessel was mentioned as Tug . (ii) In the print out of website the vessel was shown as Tug . (iii) In Chartered Engineer s report dated 23-12-2011 though nature of winch double drum and other parts were described as non workable but in a statement which was recorded after more than one year of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtification of the various above authorities that the subject vessel is a Supply Vessel is absolutely in the line of the above judgment. In the case of Prince Marine Transport Services Pvt. Ltd., supra this Tribunal held the classification of the vessel as Supply Vessel on the basis of Certification of classification issued by the Indian Registrar of Shipping and the Safety Management Certificate issued by the Indian Registrar of Shipping wherein the vessel was shown to have been registered as Supply Vessel. In view of this settled position, it is clear that when the statutory authorities as listed above have certified the subject vessel as Supply Vessel then there is no reason to classify the vessel, differently in other CTH 8904 as held by the ld. Commissioner. 6.1 As regard the evidences relied upon by the Revenue, in the Memorandum of Agreement of purchase of the vessel the vessel was mentioned as Tug. The Managing Director of the appellant-company in his statement dated 29-12-2011 explained that on the first page of the Agreement the vessel is described as Ocean Going Utility-cum-Offshore Supply Vessel but at Pages 2 4 of the Agreement it was described as Steel Tug M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discarded . Following the ratio of this judgment, in the present case also even though the vessel has winch, this will not suffice to hold the classification of vessel as Tug. 6.4 In view of above discussions and settled legal position, we are of the considered view that the subject vessel Happy Success is correctly classifiable as Supply Vessel falling under CTH 8901 and consequently exempted under Notification No. 21/2002-Cus. The ld. Adjudicating Authority in Para 50 of the impugned order confiscated the vessel on the charge of misdeclaration of classification of subject vessel. However, we held that classification of vessel under CTH 8901 as Supply Vessel claimed by the appellant is correct, therefore confiscation of vessel does not survive. As regard non-filing of Bill of Entry, we find that once goods is exempted by customs exemption notification, non-filing of Bill of Entry at the time of import is merely a procedural lapse as there is no mala fide intention of the appellant as no benefit accrues to the appellant by non-filing of Bill of Entry. We agree with the submission of the appellant that at the material period i.e. in 2006 when the vessel was imported there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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