9911796707
TMI Blog2006 (2) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. @ US$ 167 per Long Ton. Importer got a letter of Credit bearing No. 58 IDC 21.97 dated 12-8-1997 opened in favour of Ruby Enterprise Inc., 2018, Antwerp, Belgium, the foreign sellers for US$ 68,49,839.00 which amount was remitted by the Vysya Bank Ltd., Mumbai to the beneficiaries on 12-8-1997 itself. The importer had thereafter sought and been granted permission for beaching the vessel at the designated plot by the proper officer of Customs. On account of heavy current and storm the vessel got dragged towards Plot No. V-5 Sosiya and got grounded there. The importer vide its application dated 24-6-1997 requested the Assistant Commissioner of Central Excise Division, Bhavnagar for extension of time for filing the Bill of Entry for home consumption in respect of the aforesaid vessel. The requisite permission was granted by the jurisdictional Assistant Commissioner. The importer, however did not file the Bill of Entry and sought further extension of time which was declined by the Assistant Commissioner, Bhavnagar. The importer thereafter entered into a memorandum of understanding on 10th September, 1997 with Udyani Ship Breakers Ltd. ("the appellant" herein) who are the owners of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/-. On 9-6-1997 itself the vessel had started drifting. The importer transferred the title to the buyer in pursuance to the memorandum of understanding and the agreement of sale entered into between them on 26-12-1997 by executing the bill of sale in favour of the appellant on "as is where is" basis for a consideration of Rs. 12,01,00,000/- i.e. after the passing of the assessment order dated 23-12-1997. 6.The Assessing Authority in his assessment order dated 23-12-1997 held that the value declared by the appellant was not the price in the course of international trade and accordingly did not accept the price declared by the appellant in the Bill of Entry and appraised the value of the vessel at the price at which it had been purchased by the importer in the course of international trade. 7.Aggrieved by the aforesaid assessment order the appellant filed an appeal before the Commissioner of Customs (Appeals) who vide its order dated 26-2-1999 allowed the appeal. It was held that the appellant was entitled to the benefit u/s 22 of the Act as the warehoused goods had been damaged after unloading but before their examination u/s 17 on account of accident not due to any wilful ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he owner, his employee or agent, such goods shall be chargeable to duty in accordance with the provisions of sub-section (2). (2) The duty to be charged on the goods referred to in sub-section (1) shall bear the same proportion to the duty chargeable on the goods before the damage or deterioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration. (3) For the purposes of this section, the value of damaged or deteriorated goods may be ascertained by either of the following methods at the option of the owner :- (a) the value of such goods may be ascertained by the proper officer, or (b) such goods may be sold by the proper officer by public auction or by tender, or with the consent of the owner in any other manner, and the gross sale proceeds shall be deemed to be the value of such goods." 10.A reading of Section 22 shows that it is for the party claiming the abatement to show to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods had been damaged or deteriorated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975 (51 of 1975) or any other law for the time being in force where under a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration [Emphasis supplied]for the sale or offer for sale." 13.The price of the vessel in the course of international trade was the price [US$ 68,49,839.00] paid by the importer to the Ruby Enterprises Inc., Belgium in terms of the Memorandum of Agreement dated 2-6-1997 in terms of sub-section (1) of Section 14 of the Act. The transaction between the importer and the respondent in terms of the Memorandum of understanding dated 10-9-1997 cannot be described as the transaction of purchase and sale during the course of international trade. Any sale of goods after the act of "import" within the meaning of the Act is over, can only be described as a sale in the course of domestic trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided : "The sellers shall deliver vessel to buyers within 1 (one) day i.e. upon receipt of full purchase price and buyer shall accept the vessel "as is where is" at Sosiya". 18.The bill of sale executed by the importer in pursuance to the MOU entered between the parties on 10-9-1997 and the agreement of sale dated 11-9-1997 on 26-12-1997 whereby the importer transferred the title of the vessel to the appellant purely on "as is where is" basis for a consideration of Rs. 12,01,00,000/-. The said bill of sale stated as follows :- "TO HAVE AND TO HOLD the said vessel and appurtenances there into belonging upto the buyer, its successors and assign for ever. Seller hereby transfers title to vessel to buyer outright 'as is where is' m standard condition and warrants that the said vessel is free of all debts, loans, taxes encumbrances and litigation and maritime lines and other claims whatsoever". 19.Memorandum of understanding dated 10-9-1997, the agreement to sell dated 11-9-1997 as well as the bill of sale dated 26-12-1997 are after the goods had arrived in India in June, 1997. Under the circumstances, the appellant could not claim the sale in its favour on High Seas basis as indica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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