2003 (11) TMI 269

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..... le to be dismissed for failure to comply with the requirement of deposit of duty also gone into the merits that the appeal was not maintainable on merits. 3.It has to be pointed out to the Commissioner (Appeals) this course of action is incorrect. In a situation, where the assessee has deposited the amount as ordered by the Commissioner (Appeals) in a stay order, he would be required to dismiss the appeal in terms of Section 35F(2) of the Act. It is always open to him to waive deposit of the duty and thereafter proceed to dispose of the appeal on merits. He cannot however by same order both dismiss the appeal for not complying under Section 35F of the Act and dispose of it on merits. However since in this case he has dealt with the merits .....

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..... fuel are classifiable in other appropriate headings." The Mumbai Bench of the Tribunal considered this very view in CCE Rajkot v. Saibaba Ship Breaking Corporation - 2002 (140) E.L.T. 135 after considering the Board circular that reproduced the circular of the World Customs Organisation it declined to accept in Paragraph 17 of the order the view of the Commissioner that merely the fuel was carried on board the ship it must be considered part of the ship. It said it is an extreme proposition to say that anything on board a ship even if required for its operation become part of it. By this criteria, petrol, oil in a car become part of a car, fodder in a cart becomes part of the cart. This is obviously untenable proposition." 6.The reasonin .....

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..... various moving parts of it such as crank shaft piston rod and provide the required film between the extend surface of the piston and the internal walls of the cylinder. After an engine is run for a length of time the oil becomes contaminated with particles and other impurities and needs to be replaced. It is this oil with clearly figures in paragraph 2b of the board circular. Any oil that is kept in any tank outside this engine clearly cannot be considered to be oil forming an integral part of the engine. The fact that the oil is stored in engine room does not confer on it any special status and such oil cannot be distinguished from oil kept anywhere else on board the ship. That oil would not be considered part of the engine that would be c .....

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