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TMI Blog2017 (2) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier decision in the case of Shree Dev Krupa Ship Breaking A/778/WZB/2004 dated 03.09.2004 which subsequently came to be confirmed by the Division Bench of this Court vide order in Tax Appeal No.537/2004, the learned CESTAT has dismissed the said appeal, the Revenue has preferred the present Appeal initially to consider the following questions of law. "Whether in the facts and circumstances of the case M/s. Khanbhai Esoofbhai in whose hands the vessel was actually broken up is liable to pay customs duty that became leviable in accordance with proviso to Notification No.163/65Cus dated 16.10.1965, or otherwise" [1.1] It is required to be noted that relying upon the decision of this Court in the case of Commissioner of Customs vs. Shree De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of CESTAT Order)? [3] The relevant date on which the vessel is broken up would be the date on which it is taken for breaking i.e. the date of transfer from the Shipping Corporation of India to the respondent and not the date of beaching at Alang and on that date the importer would be Shipping Corporation of India (Para (xii) of page 10 of CESTAT Order? On remand, over and above, the above question, the Division Bench also framed one additional question of law. Thus, in the present case, the following substantial questions of law arise for consideration of this Court. "[1] M/s Shree Dev Krupa Ship Breaking, Sosio Ship Breaking Yard, Bhavnagar, are not importer within the meaning of section 2(26) of the Customs Act, 1962 (Para ix) of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and vide judgment and order dated 26.07.2012, the Division Bench of this Court has allowed the said Tax Appeal No.537/2004 and has quashed and set aside the order passed by the learned CESTAT and has answered all the questions which are common in the present Tax Appeal also, in favour of the Revenue and against the assessee. Therefore, as such substantial questions of law raised in the present Tax Appeal are already answered in favour of the Revenue and against the assessee, by the Division Bench of this Court in Tax Appeal No.537/2004. The aforesaid is not disputed by Shri Paresh Dave, learned Counsel appearing on behalf of the respondent. However, Shri Dave, learned Counsel appearing on behalf of the assessee has submitted that be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king up and the Hon'ble Karnataka High Court has held in case of Engee Industrial Services Pvt. Ltd. 2004 (164) ELT 242 (KAR) that additional duty of customs being directly linked to rate of central excise duty of customs being directly linked to rate of central excise duty, which is nil for ship imported for breaking up, the additional duty in respect of Tariff item 89.08 for vessels for breaking up must also be nil. This exemption is applicable for the vessel involved in the present case also, and accordingly a substantial portion of the duty demand would disappear if additional customs duty is exempt. 4) This Hon'ble Court has held in case of Shivam Engineering Co. & Others 2014 (310) ELT 641 (Guj.) that additional customs duty on ship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CESTAT nor the said question arise in the present Tax Appeal. Therefore, the submission on levy of additional customs duty is raised now for the first time. Therefore, it is required to be noted that no question of law is framed with respect to levy of additional customs duty on ships and vessels and rightly not raised as no such question was raised before the learned CESTAT. Therefore, now it is not open for the assessee to raise the question with respect to levy of additional customs duty on ships and vessels which was never raised earlier. It is required to be noted that earlier before the learned CESTAT the respondent assessee heavily relied upon the decision in the case of Shree Dev Krupa Ship Breaking (Supra). Even the Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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