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TMI Blog2024 (4) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... ent ( AR ) for the Respondent ORDER RAMESH NAIR : These appeals are filed against the Order-in-Original No. KDL/COMMR/ 39/2012-13 dated 21.11.2012 and KDL/COMMR/PVRR/12/2015-16 dated 30.09.2015. Being involved common issue, all the appeals are taken up together for disposal. The table below gives details of appeals. Sl. No. Appeal No. Name of Appellant O-I-O No. & date Custom duty Demand Penalty 1 C/10430/ 2013 M/s Adani Enterprises Ltd. KDL/COMMR/39/2012-13 dated 21.11.20212 Rs. 4,89,86,290/- 1. Rs. 1,75,00,000/- [u/s 112(a) of the Customs Act, 1962] 2. Rs. 1,75,00,000/- [u/s 114(ii) of the Customs Act, 1962] 3. Rs. 1,50,00,000/- [u/s 114AA of the Customs Act, 1962] 2 C/10431/ 2013 Shri Chandan Prasad Samaiyar KDL/COMMR/39/2012-13 dated 21.11.20212 . Rs. 10,00,000/- [u/s 112(b) of the Customs Act, 1962] 2. Rs. 10,00,000/- [u/s 114(ii) of the Customs Act, 1962] 3. Rs. 10,00,000/- [u/s 114AA of the Customs Act, 1962] 3 C/10432/ 2013 M/s Jaisu Shipping Company Pvt. Ltd. KDL/COMMR/39/2012-13 dated 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Warehoused in terms of Section 58 and Section 85 of the Customs Act, 1962 for re-export thereof including for supply to the foreign going vessels in respect of which they used to file undertaking in terms of Section 59 of the Customs Act, 1962. The warehousing of imported bunker fuel was done in the registered Warehousing Tanks, duly authorized in terms of the Section 58 of the Customs Act. M/s AEL and M/s World Link was regularly showing supply/export of the Furnace Oil and HSD as bonded bunker to the foreign going vessels at various ports of Gujarat under the various shipping bills filed at the Customs House, Kandla and Mundra port and SEZ, such supplies were made under the procedure of Bond to Bond transfer under the supervisions of the Customs Officers. On receipts of the intelligence that M/s AEL and M/s World Link were engaged in the diversion of the Bonded Bunkers in the guise of supply to the foreign going vessels at various ports such as Sikka, Bedi, Vadinar, Pipavav etc. Intelligence also indicated that M/s Zee Shipping Services had arranged supply of bunkers. The office premises of the appellants were visited and searched by the DRI officers and relevant records relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing judgments: (i) Marvel Apparels Vs. Commissioner of Customs, Trichy -2008(227)ELT 243 (Tri. Chennai) (ii) Reliance Industries Ltd. Vs. Commissioner of Central Excise, Bombay 2006(199) ELT 681 (Tri. Del.) 5. He also submits that in the present matter there is no positive evidence in the form of statement or documents to show that the goods covered by the shipping bills were diverted to any place/person/vessel instead of being supplied to the vessel declared in the Shipping Bills filed by the Appellant. 6. He further submits that Ld. Adjudicating authority has completely erred in failing to appreciate that the appellant were not acting as the shipping agent for the vessel and therefore, they were not under statutory obligation to file the Export General Manifest under the Export Manifest (Vessels) Regulations, 1976. Therefore, it cannot be held that the goods were not supplied to the vessel declared in the Shipping Bills on the ground that respective Export General Manifest Filed by the Shipping Agent did not contain the copy of the aforesaid Shipping Bill. 7. He also submits that Shri Dushyant Patel has nowhere admitted in his statement dated 01.04.2009 that goods covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submits that Appellant was permitted to import HSD under Customs bond without an import licence. At the material time, the appellant had declared that HSD was to be supplied as stores to vessels without payment of import duty. In keeping with the declaration made at the time of import, the appellant never marketed the HSD for sale in India or for any other purpose but supply as stores to the vessels. In respect of HSD covered by the 5 shipping bills, the appellant received the order for supply of HSD to the foreign going vessel from M/s. Zee Shipping Service, who provided all the details that were required for supply of the goods to the concerned vessels. Accordingly, the appellant filed the shipping bills with Customs House, Kandla clearly declaring the name of the destined foreign vessels. The goods were never handed over to M/s. Zee Shipping Service but were supplied by the Appellant directly to the foreign going vessel by filing shipping bill and executing warehousing bond and transit bond with custom House, Kandla , where the goods were permitted to be imported. Appellant also submitted the documentary evidence in the form of shipping bills bearing the signatures of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed to demand duty on the Bunkers supplied to the Foreign Going Vessels on the ground that there was no "Let Export Order" under Section 51 of the Customs Act 1962 in respect of the said Bunkers. However the said contention is totally misconceived inasmuch as the supply of Bunkers (Stores) to foreign going vessels is governed by the provision of Section 88 read with Section 69 of the Customs Act 1962 and not by Section 51 of the said Act. Section 88 provides that the provisions of Section 69 and Chapter X shall apply to store as they apply to other goods, subject to the modification that for the words "exported to any place outside India" or the word "exported", wherever they occur, the words "taken on board any foreign going vessel or aircraft as store" shall be substituted. The effect of the said Section read with Section 69 is that Bunker (Store) which are warehoused in Bonded Tanks, may be taken on board by any foreign going vessel without payment of import of duty if shipping bill is filed and order for clearance for taking the same on board such vessel is assessed. Accordingly, the order contemplated by section 88 read with Section 69 is not order for export, but is orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard the foreign going vessels is confirmed and endorsed on the shipping bills and certified by the landing certificate duly signed by the Customs Officers and the Master of the Vessel, any alleged discrepancy/ mistake in the Oil record books maintained by the Barge is irrelevant as far as the Appellant is concerned. Such Oil record books maintained by a third party cannot override and dislodge the Shipping Bills and Landing Certificates duly signed by the Customs Officer and the Master of the vessel. It is settled law that such third party record or the mistakes therein cannot be relied upon to make out a case for duty demand against the assessee. He placed reliance on following judgments. (i) CCE Vs. Garg Industries Pvt. Ltd. - 2023 (385)ELT 541 (ii) Bajrangbali Ingots & Steel P. Ltd. Vs. CC -2019(1) TMI 966 (iii) CCE Vs. Vishnu and Co. -2016(332)ELT 793 (Del.) (iv) Taksus Steels Pvt. Ltd. Vs. CCE -2015(329) ELT 859 (v) Rama Shyama Papers Ltd. Vs. CCE -2004(168) ELT 494 (vi) Rutvi Steel and Alloys Vs. CCE - 2009 (243)ELT 154 (vii) Sunhill Ceramics Pvt. Ltd. - 2007(217)ELT 353 17. He also submits that there is absolutely no evidence whatsoever that the Bunkers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 subscribing the declaration that the imported bunker fuel would be exported in the form of supply to vessels under foreign run. Hence on execution of the Warehousing Bond by the importers, such Furnace Oil and HSD are allowed to be warehoused in terms of Section 85 of the Customs Act, 1962 without payment of duty subject to compliance of the undertaking filed by them under Section 59 of the Customs Act, 1962. Because of the reason the imported stores may be consumed on board a foreign going vessel or aircraft, under Section 87 of the Customs Act, 1962 the export/supply of Bonded Bunker is shown to be made by importers, on strength of the Shipping Bill meant for "Export of Duty Free Goods Ex-Bond", under Section 69 of the Customs Act, 1962 applied for ship store supply to foreign going vessels, in terms of provisions of Section 88 of the Customs Act, 1962. The export/supply of the bonded bunkers to the foreign going vessels is also made by the importers by employing the tanker trucks as well as the Bunker Barges. On Custom"s clearance of the Shipping Bills filed by importer for supply of Bonded Bunker, the examination of the bunker is carried out and then Let Expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vessels by the Appellants. The documents like Log Book (LB) and the Oil Records Books of Bunker Barges shown having used in the transportation were also called for from the Barge owners/ Operators and details of all bunkers supplies made through barge Zee-II were called for from M/s Zee Shipping Services and others. Further the details regarding schedules and bunker status of the recipient vessels, at the port were also called from the Shipping Agent during their respective statements by the revenue. All the documents and details later examined and verified to ascertain the supplies whether actually made by Appellants or not. 22. We find that the Shipping Bills filed at the Ports, wherein the Consignee is shown as the Master of the Foreign Going Vessels to whom the supply is to be made, were duly assessed by the proper officers of Customs at Kandla, Mundra and others ports where the Bonded tanks is located. This is evident from the fact that on Shipping Bills, bear the signatures of the Customs Officers, who assessed the Shipping Bills. Documentary evidences like acknowledgment by the Master of the vessel, acknowledgment by the Customs officers who escorted bunkers and supervised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Ld. Adjudicating authorities without any such evidences which are legally not correct in the eyes of the law. 24. We find that in the present matter the demand is confirmed by the Ld. Adjudicating authorities in respect of the Shipping Bills on the ground that the EGM"s filed by the vessels do not reflect the receipts of the Bunkers as supplied by the Appellants by virtue of the said Shipping Bills. In this regard we find that EGM is a document that is prepared by the Master of the Vessel or the Shipping agent and filed with the proper officers at the time of departure or within 7 days from the date of departure. However on this basis only duty liability cannot be confirmed against the Appellant. In the present disputed matter we find that in respect of the all the shipping bills appellants have duly recovered the consideration for the bunker supplied to recipient vessels. Despite the EGM not mentioning the receipt of bunkers, the owner of the recipient vessels has duly made payment for the said bunkers. The Appellants had submitted other documentary evidences to substantiate the supply of the bunkers. Shipping Bills on the reverse carried the endorsement of the Customs o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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