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TMI Blog2023 (11) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed. - HON BLE MR. C. L. MAHAR , MEMBER ( TECHNICAL ) Shri. Chandrashekhar R. Gupta , Senior Manager for the Appellant Shri. P Ganesan , Superintendent ( AR ) for the Respondent ORDER C. L. MAHAR The brief facts of the matter are that the appellants were appointed as Customs House Agent (CHA) by the Importers/ Owners of the Vessel Pride of Goa by importing company M/s. Goa Coastal Resorts Recreation Pvt. Ltd. The appellant on the basis of the documents supplied by the importer has filed Bill of Entry for clearance of the imported vessel. The department suspecting misclassification and misdeclaration of import the value of -Vessel Pride of Goa issued a show cause notice dated 16.04.2012 where under additional customs duty amounting to Rs. 7,61,91,014/- was demanded under Section 28 (4) of the Customs Act, 1962. The demand of duty was charges that the value has been misdeclared and therefore the same is to be re-determined as per the provisions of Section 14 of the Customs Act, 1962. Other penal provision and other charges were also invoked. The appellant was also show cause as to why a penalty under Section 112 (a) of the Customs Act, 1962 on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbour 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 Notification dated 11-10-1958, the following observations were made by the Apex Court in Para 20 :- 20. We do not think that, in the present case, the question whether a transshipping vessel is an ocean going vessel, can solely rest on the test of its dominant use to which their owners put them at times. Use may vary from season to season, port to port and also managers to managers. So, in this area of understanding use of article stands down staged, and the Court must look at to know what actually the commodity is. 5.2 In the light of above law laid down by Apex Court and the conflicting judgment of CESTAT Mumbai in the case of CCE v. Waterways Shipyard Pvt. Ltd. (supra), CGU Logistics Ltd. v. CC (I), Mumbai (supra) and Hal Offshore Ltd v. CC, Mumbai (supra), it has to be seen as to what is the nature of vessel POG. Whether it is a P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssels 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 Explanatory Notes say that all Casino vessels are vessels for pleasure or sport. 5.4 A definition of Pleasure vessel appears in The Merchant Shipping (Vessels in Commercial Use for Sports or Pleasure) Regulations, 1988, issued as per the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17-5-1993. As per these Regulations, Pleasure Vessel means (a) any vessel which at the time it is being used is : (i) (aa) in the case of a vessel wholly owned by an individual or individuals; used only for the sport or pleasure of the owner or the immediate family or friends of the owner; or (bb) in the case of a vessel owned by a body corporate, used only for sport or pleasure and on which the persons on board are employees or officers of the body corporate, or their immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Apex Court in the following cases held that an assessee cannot seek a relief by way of refund without the assessment order being reviewed in appeal as follows :- (i) Priya Blue Industries Ltd v. CC (Preventive) - 2004 (172) E.L.T. 145 (S.C.) 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order before the Collector (Appeals) if so advised. 5.8 In the absence of any new facts unearthed by the investigation to indicate fraud/wilful misstatement 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 extended period. 6. Another argument taken by the appellant importer is that the demand is time-barred as full and correct description was shown in the bill of entry. It is observed from the facts available on record that the following description of the imported vessel was given in the bill of entry filed by the importer :- 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 inside (838-Casino Machines and Casino-Game Tables Accessories, Surveillance Systems- including 15 Monitors 5 Recording Devices, Casi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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