9911796707
TMI Blog2017 (12) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... those were conveyance for ONGC only. Appellant was obliged to ONGC under contract to transport its working personnel and goods without providing any transportation service to general public - the vessels remained as “goods” only not only at the time of first entry thereof into India but also during re-imports made from time to time on repair thereof. Re-import of goods under Section 20 of the Act is permitted under law when the exported goods came to India again goes back out of India for repairs Partial duty concession/exemption is available to the re-import as is covered by the aforesaid notification. Revenue discharged its burden of proof bringing the goods to CTH 89059090 in view of technical character of vessels ruling out their adoptability by CTH 89019090. Mere filing of the documents at page 80 and 81 of the paper book does not exonerate the appellant from its duty liability without filing the Bills of Entry disclosing the value of the repair/renewal/modification and installation of machinery done to the vessel including freight and insurance charged incurred. Therefore, there was violation of law made by the appellant relating to filing of Bills of Entry which is well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, modification as well as installation of machinery therein from time to time incurring freight and insurance. Assessable value of such cost of repair including freight and insurance was not declared by the appellant to Customs although such value was liable to duty under the Act (hereinafter referred to as the Act ) and classifiable under Customs Tariff heading 89059000 of Customs Tariff Act, 1975 read with Notification No.94/96-Cus dated 16.12.1996. 3. The vessels known as SEAMEC-I, SEAMEC-II and SEAMEC-III being multipurpose support deep sea vessel were intended to be used on charter contracts with different companies. Those were specifically designed and built to undertake shore based maintenance/removal and installation, platform repairs-subsea/topside, riser repairs-subsea, fire fighting, rescue and pollution control without being capable of commercially used as carriage for passenger or cargo commercially. All the three vessels, at the time of import thereof, were classified under CTH 89059090 and such classification continued to be maintained by Customs even on re-import thereof from time to time upon repair thereof abroad. 4. The vessels stated above having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y; Law relating to re-import enacted in section 20 of the Act reads as under: SECTION 20 Re-importation of goods. If goods are imported into India after exportation therefrom, such goods shall be liable to duty and be subject to all the conditions and restrictions, if any, to which goods of the like kind and value are liable or subject, on the importation thereof . 6. Revenue was of the view that the following notifications were issued under Act to extend exemption from levy of Basic Customs Duty (BCD) on goods falling under specific sub-heading of Chapter 89 of the First Schedule of the Customs Tariff Act, 1975 when imported into India. Notification No.133-Cus., dated 19.03.1987- 8901.10, 8901.20, 8901.30, 8901.90, 8902.00, 8904.00, 8905.10, 8905.90 and 8906.00. As per Sr. No.179 of the table to Notification No.36-Cus., dated 23.07.1996- 8901.10, 8901.20, 8904, 8905.10, 8905.90 and 8906.00. As per Sr. No.194 of the table to Notification No.11/97-Cus., dated 01.03.1997- 8901, 8902, 8904, 8905.10, 8905.90 and 8906. As per Sr. No.228 of the table to Notification No.23/98-Cus., dated 2.6.1998- 8901, 8902, 8904, 8905.10, 8905.90 and 8906. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onically to the proper officer a bill of entry for home consumption or warehousing in the prescribed form: Provided that the Principal Commissioner of Customs or Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically, allow an entry to be presented in any other manner: Provided further that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. (3) The importer shall present the bill of entry under sub-section (1) before the end of the next day following the day (excluding holidays) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her law for the time being in force. [Emphasis supplied] 9. On the above background, investigation found that when all the three vessels were coming back to India on re-import from time to time during the impugned period with the repair/modification thereto, No Bills of Entry having been filed for the value of repair/modification carried out thereto abroad as well as freight and insurance incurred and No adjudication or assessments were ever made thereon, that has resulted in loss to the exchequer for the relevant periods, show-cause notices were issued and adjudication against SEAMEC-I resulted with following consequence of law: - 1) The vessel Seamec I was classifiable under CTH 89059090 and thus liable to duty. 2) The value of the repair charges of the vessel Seamec I was determined to be ₹ 37,16,94,698/- CIF (Rupees Thirty-seven crores Sixteen lakhs Ninety four thousand six hundred and ninety eight only) for assessment purpose. 3) Demand of duty evaded was ₹ 5,68,69,285/- (Rupees Five crores Sixty eight lakhs Sixty nine thousand two hundred eighty five only) under Section 28(2) of the Customs Act, 1962, (as it existed till 08.04.2011) or Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 111 (m) of the Customs Act, 1962. However an option to the importer was given to redeem the same on payment of redemption fine of ₹ 12,00,00,000/- (Rupees Twelve Crores Only). While imposing redemption fine, value of repairs was conscioused at ₹ 120,84,56,328/- CIF (Rupees Thirty-seven crores Sixteen lakhs Ninety four thousand six hundred and ninety eight only). 10) Penalty was imposed on M/s. Seamec Ltd. of ₹ 18,48,93,808/- (Rupees Eighteen crores Forty eight lakhs Ninety three thousand Eight hundred eight only) plus interest so determined under section 114A of Customs Act 1962. However, M/s. Seamec Ltd pays the duty and interest determined within 30 days from the date of the communication of the order, penalty was limited to 25% of the duty and interest so determined. 11) The vessel Seamec III was classifiable under CTH 89059090 and thus liable to duty. 12) The value of the repair charges of the vessel Seamec III was determined to be ₹ 71,00,69,589/- CIF (Rupees Seventy-one crores Sixty-nine thousand five hundred and eighty nine only) for assessment purpose. 13) Demand of duty evaded was ₹ 10,86,40,641/- (Rupees Ten cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002-10 28.3.2013 5,68,69,285 3,75,00,000/5,68,69,285 C/87660/13 M.S.V Seamec-II 6.52 Crores on 09.8.12 2002-06 28.3.2013 18,48,93,808 12,00,00,000/18,48,93,808 C/87536/13 M.S.V Seamec- III 4.14 Crores on 12.7.12 2003-11 28.3.2013 10,86,40,641 7,00,00,000/10,86,40,641 According to appellant, the issues involved in all the three appeals are whether the vessels as appearing in TABLE -1 above were re-imported into India upon repair thereof, from time to time during the periods covered by column (5) of the said Table, shall be classifiable under the CTH 8905 9090 as claimed by Revenue or under CTH 8901 90 00 as claimed by the appellant and whether on such re-importation, value of repair so made including freight shall form part of the assessable of the such re-imported vessels and necessary duty leviable thereon under the Act. According to Revenue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.12.2003/Mumbai 10.12.2003 11.12.2003 144, 145 30.09.2004/Mumbai 29.9.2004 4.10.2004 141, 142 07.03.2005/Mumbai 7.3.2005 11.3.2005 133, 134 20.09.2005/Mumbai 22.9.2005 Page No.83 of Volume-VII 25.07.2006/Mumbai 14.12.2007/Mumbai 18.12.2007 Page No.90 of Volume-VII 07.10.2008/Mumbai 08.10.2008 Page No.94 of Volume-VII 05.08.2010/Mumbai 5.8.2010 06.08.2010 Page No.88, 89 84 of Volume-VII Seamec-II TABLE - 4 Date on which Seamec II came back Bill of Entry for stores and consumables on board Date on which the vessel was converted from foreign run to coa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 20 of Customs Act into India from time to time upon their repair and thereby duty payable on such value being evaded, adjudications were made to recover such duty with penal consequence of law followed. Seamec-I: TABLE - 6 Date on which Seamec-I went out Date on which the vessel was converted from costal run to foreign run Page No.of appeal No.C/87659/2013 containing the Order of Superintendent of Customs 27.4.2002 21.11.2002 8.6.2004 3.6.2004 147 7.2.20054 2.2005 132A 25.5.2005 30.6.2006 13.5.2007 8.7.2008 6.6.2010 04.06.2010 Page No.79 of Volume-VII Seamec-II: TABLE - 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tores on re-import, shall not immune the appellant from filing bills of entry in respect of the value of repair and freight and insurance incurred against the re-impoted vessels, which is its legal obligation under section 46 of the Act and dutiable. Thereby contravention of the provisions of law was made by the appellant and duty was evaded for which that is sought to be recovered through the adjudications. 14. Placing Para 7.3 of its synopsis, appellant submitted that the Tables above depict knowledge of the customs beginning from 2002 in respect of SEAMAC - I and II and for the period beginning from 2003 against SEAMAC - III . Entire operation of the appellant was within the knowledge of the Customs. Placing Para 2.1 of the synopsis filed, appellant explained that the vessels were exempts from duty for which No duty can be collected. The redemption fine imposed was unwarranted for the reason that there was No question of seizure of the vessels without violation of any of the provisions of Section 111 of the Customs Act, 1962. But show cause notice invoked Section 111(m) of the said Act even though in worst circumstances that may attract only Section111(f) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on page 80 of volume VII of the paper book and page 81, thereof it was submitted on behalf of the appellant that the vessels were foreign-going vessels and the log book maintained for each such vessel proved that the vessels were moving from India and returning back to India clearly indicating the origin and destination thereof as a conveyance only. But, Customs department pressed the appellant to pay customs duty and that is paid under dispute and protest awaiting adjudication. Therefore discharge of the duty as an interim payment on the compulsion should not be treated as admission of the appellant against liability. Similarly, seizure of the vessel and giving custody thereof to the appellant does not mean that lawful seizure was made by Revenue. Therefore, without provision in law to hold that interim payments and seizure are basis to initiate proceeding, entire action of customs is illegal and uncalled for. 20. So far as the issue of classification is concerned, appellant submitted that Revenue failed to prove their stand that the vessels are classifiable under CTH 8905 9090. Appellant relied on the decision of the apex Court in the case of Hindustan Ferodo Ltd. v. Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant and available in adjudication records establishes from page 1, 2, 7, 8, 15 and 16 thereof that all the three vessels were specifically designed only to serve the purpose of ONGC without capable of being used commercially as a passenger or cargo carrier. Those were not at all designed for commercial use as conveyance of passengers or cargo. Therefore, appellant s contention that the vessels were foreign-going vessel as defined by section 2(21) of the Act, fails to stand when those are not capable of carrying any passenger or goods but being only used as per terms of contract of the appellant with ONGC as diving support vessels. 24. Placing reliance on page 105 of the appeal record learned AR submits from reply to the show cause notice of the appellant that essential features of the vessel as per technical literature submitted by the appellant demonstrate peculiar character thereof as is evident from page 2 to page 8 and page 16 of the said literature. The encyclopaedia of Ship Technology also brings out that what diving vessel means. According to them at page 184 the meaning thereof reads as under: Diving support vessel (DSV) - A vessel provided with diving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sels (ARDSV). ARDSV is meant to carry out diving in air range only besides other Jobs as per Scope of Work. 1.2 The ARDSV is required to provide/perform the following services/operations: 1.2.1 To carry out under water and above water visual and NDT inspection, maintenance and repairs of steel structures by Air diving, in water depth of maximum 50 m. 1.2.2 To carry out under water through air diving and above water inspection, maintenance and repair of offshore structures, risers, PLEMs, tanker mooring, de-mooring, maintenance, operations, decommissioning and re-installation of SPMs/SBMs etc. 1.2.3 Deleted. 1.2.3a To carry out repair of risers of sizes 4 to 42 by using repair clamps or sectional replacement (using weld less connectors/ flange connection! direct welding to parent pipe). 1.2.4 To carry out topside (including splash zone) inspection, maintenance and repair of offshore structure - spider deck, risers, boat landing etc. 1.2.5 To provide dive support to various offshore installations, jack up rigs and floaters etc. 1.2.6 To carry out fire fighting operations of offshore installations, rigs, vessels, tankers, etc. in of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip . According that law, character of the coastal ship is as under: coasting ship means a ship exclusively employed in trading between any port or place in India and any other port or place on the continent of India or between ports or places in India and ports or places in Ceylon or Burma; 29. According to the above definition coastal ship is employed for movement from one port to another and on the continent of India or between locations on the same continent of inland ports of Indian coasts. Such definition covers the activity of the appellant carried out for ONGC under the contract as aforesaid. This is more clear from Para 1.1 to 1.3 of the annexure at page 171 of the Volume No.VII of the paper book of the appellant. Relying on the decision of the apex Court in the case of Union of India v. V.M. Salgaonkar Bros. (P) Ltd. reported in 1998 (99) ELT 3 (SC), learned AR for Revenue says that the vessels of the appellant came as goods to India having been imported as goods , went out of India as goods only for repair thereof from time to time and re-imported as goods were not ocean going ship. That was goods only attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the said tariff heading. Inviting attention to page 13 of the compilation of Revenue which deals with HSN classification in respect of tariff heading 8901 , Revenue submitted that the goods covered therein shall be only ships, barges and similar vessels for transport of persons or goods. But the vessels of the appellant do not at all fall thereunder without being designed for the same. So far as the tariff heading 8905 is concerned that is explained elaborately by the HSN classification at page 17 and 18 of the compilation filed by Revenue reading as under: 89.05 Light-vessels, fire -floats, dredgers, floating cranes and other vessels the navigability of which is subsidiary to their main function; floating docks; floating or submersible drilling or production platforms. 8905.10 Dredges 8905.20 Floating or submersible drilling or production platforms 8905.90 Other The tariff entry 8901 reads as under: 8901 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that was specifically made for the intended purpose of ONGC . Navigation was secondary and that was not criteria for the purpose of claiming classification by the appellant since the purpose of the vessels were not to carry any passenger or cargo to the navigability. 35. Placing Para 29.6 of page 39 of the synopsis of the appellant, Revenue submitted that the vessels which are subject matter of appeals were used to assist divers in diving operations at different locations. That has also ability to navigate to different locations at any given point of time and such navigability was only for the purpose of ONGC but not for transporting passenger or cargo as a commercial activity. The appellant admits that diving operation was its main object and navigability was subsidiary to this main function. This was brought to the notice of the appellant from to time and that is admitted by the appellant in Para 1 of the reply to the show cause notice filed on 14/10/2012 (available at page 105 of the appeal folder). 36. When the vessels were made according to the specific drawing and design and imported, that was goods and rightly classified under CTH 8905 . When those were goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... howing that the nature and character of the vessel compelled Revenue to maintain its stand of classification as was made at the time of first import. Revenue submitted that burden of proof was discharged by it proving that the technicality and design of the vessels remained unchanged handicapping the appellant to use such vessels commercially for passenger or carge transportation and Appellant failed to contradict that. According to Revenue, appellant s reliance in the case of Hal Offshore vs. Commissioner of Customs 2014 (303) ELT 119 (T) having been admitted by the Supreme Court against Tribunal s order that decision is in jeopardy. However in page 36 of the decision, it is held by Tribunal that character of the vessel decides classification thereof. 40. Inviting attention to page 239 of paper book volume VII, filed by appellant, Revenue submits that scope of work carried out by SEAMEC- II is well stated at page 259 thereof. When the vessel was meant to serve that purpose it is not at all possible to hold that the vessel were cargo or passenger vessel. Further reliance was placed by Revenue on page 259 to 261 of the said volume of the paper book to contend so in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to Revenue mere error in citation of the section or sub-section or omission thereof in the show cause notice does not make adjudication fatal following the ratio laid down by the apex Court in the case of Collector of Central Excise, Calcutta v. Pradyumna Steel Ltd - 1996 (82) ELT 441 (SC). Revenue submitted that such fact can be appreciable from 11.3.1 and Para 12.15 of the synopsis of the appellant. Penalty under section 114A was bound to be imposed for the breach of law by the appellant and that has been rightly done in adjudication. So also confiscation was rightly ordered. 44. On the issue of determination and confirmation of duty liability, Revenue placed its reason at page 9, under Para E of its synopsis. According to Revenue, appellant s plea that request was made to Customs by it to convert the vessel from foreign-going to coastal run was of No sense when the vessels were not at all foreign-going by their nature. Appellant filed bills of entry only in respect of the bunker and other consumables without filing any bill of entry in respect of value of repair made to all the three vessels from time to time and machinery installed therein at the time of each re-impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant deliberately. 47. Placing Para 6.2 at page 45 of the volume I of the paper book of appellant, it was emphasised by Revenue that the vessels re-imported into India being meant for home consumption that is goods only and liable to customs duty at the rate and value prevalent on the date of re-importation. Revenue also relied on Para 6.3 of the above document to support its contention that the vessels entered into India on re-importation were goods and those were meant for use by ONGC in India. Learned AR for Revenue relied on Para 6.5 of its notes of argument to submit that when the vessels were meat for home consumption, that has been held so as goods . Placing reliance on Para 6.7 of the Supreme Court judgment in the case of Chowgule Co. Pvt. Ltd. v. Union of India - 1987 (28) ELT 39 (SC), Revenue explained what is called coastal vessels and coastal run has been well explained in that Para. Therefore revenue prayed that taking into consideration totality of the facts and circumstances of the case, evidence on record as well as law, Revenue s contentions succeeds and the vessels are classifiable under CTH 8905 and liable to duty as goods upon re-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50. The vessel was never meant to be goods on the re-import because there were subsequent movements after the original entry into India. For this purpose filing of bill of entry is unwarranted every time. Accordingly, there is No question of confiscability. Section 15(1)(c) of the Customs Act, 1962 is not invocable following decision reported in Samson Maritime Ltd v. Commissioner of Customs (Import), Mumbai - 2016 (333) ELT 148 (Tri. Mumbai). According to appellant, when penalty is linked to duty and such duty is not imposable, without section 28 being invoked, relying on the decision in L and T Sapura Shipping Pvt Ltd v. Commissioner of Customs reported in 2016-TIOL-1519-CESTAT-MUM, appellant should not face confiscation and penalty. As far as SEAMAC-III is concerned, there was a re-entry of the vessel in 2011. If at all duty is leviable, following decision of Hon ble Supreme Court dismissing appeal and review application of Revenue, against order of Tribunal in SRF Ltd. Vs. Commissioner Of Customs, Chennai - 2015-TIOL-74-SC by order dated 15/07/2016, the appellant should not face any unwarranted levy of duty of customs and additional duty of customs equal to the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-sea pipelines, 5 SPMs/SBMs, 20 PLEMs etc. The diving support vessels are deployed for inspection of platforms and to ensure that these facilities are fit for use. These diving support vessels are also required to provide the fire fighting, safety, search rescue and pollution control support to offshore oil and gas fields. To carry out underwater inspection ONGC has already deployed vessels with both air and saturation diving and are known as MSVs. In addition to MSVs ONGC now intends to deploy Vessel with only air diving facilities which will be known as Air Range Divine Support Vessels (ARDSV). ARDSV is meant to carry out diving in air range only besides other Jobs as per Scope of Work. 1.2 The ARDSV is required to provide/perform the following services/operations: 1.2.1 To carry out under water and above water visual and NDT inspection, maintenance and repairs of steel structures by Air diving, in water depth of maximum 50 m. 1.2.2 To carry out under water through air diving and above water inspection, maintenance and repair of offshore structures, risers, PLEMs, tanker mooring, de-mooring, maintenance, operations, decommissioning and re-installation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.5 Reporting as per Schedule - 9. 2.6 Material supplies equipment, services and personnel to be furnished by the CONTRACTOR/ CORPORATION as per Schedule-10. 2.7 Documentation Requirements Schedule-11. 2.8 Contractor s responsibility including breakdown clause as per Schedule-12. 2.9 Health, Safety, Environment (HSE) Policy and Fall Protection as per Schedule-13. 55. All the three vessels were dedicated vessels to render aforesaid service to ONGC only, without being capable of commercially operated as passenger or cargo carriage. For a limited purpose those were conveyance for ONGC only. Appellant was obliged to ONGC under contract to transport its working personnel and goods without providing any transportation service to general public. 56. On the basis of technical literature submitted by the appellant, it proved its case that all the three vessels were more specifically and technically designed/built which suited for specialized use of ONGC without being usable as a commercial cargo or passenger ship/vessel for carriage of cargo or passenger between any port in India or any port outside India. In such circumstance, the vessels remained as goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled if any, installed thereon as well as freight and insurance charges incurred for the to and fro journey undertaken by the vessels. Accordingly, Customs Authority was prevented to know the cost of such repair, cost of installed machines, freight and insurance charges incurred in respect of these vessels when entered into India on re-import. Thereby interest of Customs was prejudiced. 59. Appellant pleaded that when vessels were arriving during the impugned period, authorities having taken inventory of the store in the vessel as exhibited by the sample copy of the document at page 81 of the paper book, Volume-VII, it was within their knowledge that vessels have entered into India on re-import. But such plea of appellant is devoid of merit for the reason that appellant failed to discharge its obligation under law to without filling Bills of Entry disclosing value of repair, freight and insurance even though Section 46 of the Act read with Section 20 thereof specifically require the appellant to file Bills of Entry in respect of the repair and renovation cost made to the vessel including freight and insurance incurred and machinery installed, if any, to receive examination of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime that was classifiable under CTH 89059090 for the reasons stated hereinbefore taking the criteria of classification prescribed by the said CTH. All the vessels did not possess the character of the goods covered by CTH 89019090 not being used for carriage of cargo or passenger according to the mandate of the said CTH. Accordingly, stand of Revenue that the vessels on re-import shall be classifiable under CTH 89059090 as goods only is correct and that is upheld. 63. Appellant raised the question on the rate of duty, which can be well ascertainable under Section 15 of the Act, which reads as under: - SECTION 15. Date for determination of rate of duty and tariff valuation of imported goods. - (1) [The rate of duty [* * *] and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, - (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which [a bill of entry for home consumption in respect of such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to levy and recoverable on the basis of rate of duty applicable on the dates of re-import during the impugned period. Basic Customs Duty, Additional Duty of Customs and Special Additional Duty shall be leviable and recoverable for such normal period in accordance with law. Learned adjudicating authority shall re-compute the liability and issue notice of demand accordingly. 67. In the case of Tata Tea Ltd. v. Commissioner of Customs, Chennai reported in (1999) 14 ELT 775 (SC), it has been held that section 20 of the Act read with the definition of import as given in Section 2(23), imported goods would include re-imported goods as well and therefore the goods sent/exported out of India and re-imported would also be liable to payment of duty in the same manner in which it would have been liable if imported for the first time in India. A reading of Section 20 makes it abundantly clear that the goods re-imported after exportation would be liable to duty and be subject to all the conditions and restrictions to which goods of the like kind and value are liable or subject, on the importation thereof. Accordingly, filing of Bill of Entry is mandatory in case of re-import. Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1977 (Bombay) 320 = 1988 (37) E.L.T . 528 (Bom.)], correctly appreciating and following Charandas Malhotra s case (supra) held that, section 124 of the Act contains substantive provisions relating to confiscation of goods etc. and imposition of penalty. Under Section 124 issue of a show cause notice prior to passing an order of confiscation or imposition of personal penalty is mandatory, but the language of Section 124 is clear and precise and No restriction or limitation or even a fetter is imposed as regards the time when proceedings may be initiated by issue of a show cause notice. 71. Appellant s argument that the vessels re-imported on repair were not imported for home consumption , as the commodity remains intact, without any alteration, even after it is put to use, fails to stand for the reason that the Word consumption may involve in the narrow sense using the article to such an extent as to reach the stage of its non-existence. But the word consumption in fiscal law need not be confined to such a narrow meaning. It has a wider meaning in which any sort of utilization of the commodity would as well amount to consumption of the article, albeit that article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be referable to sub-section (2) of Section 125 of the Customs Act. It would not attract Section 28(1) of the Customs Act which covers the cases of duty not levied, short levied or erroneously refunded etc. The order for payment of duty under Section 125 (2) would be an integral part of proceedings relating to confiscation and consequential orders thereon, on the ground as in this case that the importer had violated the conditions of notification subject to which exemption of goods was granted, without attracting the provisions of Section 28(1) of the Customs Act. A reference may beneficially be made to a decision of this Court reported in Mohan Meakins Ltd. v. Commissioner of Central Excise, Kochi, 2000 (115) E.L.T. 3 (S.C.) = (2000) 1 SCC 462 wherein it has been observed in Para 6. Therefore, there is a mandatory requirement on the adjudicating officer before permitting the redemption of goods, firstly, to assess the market value of the goods and then to levy any duty or charge payable on such goods apart from the redemption fine that he intends to levy under sub-section (1) of that section. This follows the principles of law laid down by Apex Court in the case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w as discussed above. He imposed penalties under Section 114A of the Customs Act which should be equal to the amount of duty evaded as prescribed by that section. Accordingly that shall be recomputed by him taking into consideration of the duty liability re-determined in the manner indicated above by this order. 76. We have not ordered penalty and redemption fine whimsically but ordered so, following the ratio law laid down by Apex Court in the case of Mansi Impex 2011 (27) ELT 631 (SC) on the facts and circumstances of the case. 77. Interest, if any, on the duty demand shall follow. 78. In view of the settled position of law as stated above and having decided the appeals on the statutory principles as well as first principles of law, further discussions on other citations is considered redundant and not to burden this order, in the fitness of the circumstances of the case and all the pleadings of appellant except bar of limitation is dismissed being devoid of merit. 79. With the above directions, findings and observations, appeals are partly allowed to the extent indicated above, holding as under: - (1) All the vessels remained as goods only even on re-import ..... X X X X Extracts X X X X X X X X Extracts X X X X
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