(1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23-2-2005 [2006 (193) E.L.T. 223 (Tribunal)] passed by the learned Customs, Excise and Service Tax Appellate Tribunal, Mumbai (hereinafter referred to as "CESTAT"), by which the learned CESTAT has dismissed the said appeal preferred by the Revenue relying upon its earlier decision in the case of Shree Dev Krupa Ship Breaking A/778/WZB/2004, dated 3-9-2004 [2007 (210) E.L.T. 591 (Tribunal)] which subsequently came to be confirmed by the Division Bench of this Court vide order in Tax Appeal No. 537/2004, the learned CESTAT has dismissed the said appeal, the Revenue has preferred the present Appeal initially to consider the following questions of law.
(2.) At the outset it is required to be noted and it is not in dispute that thereafter on remand the appeal in the case of Shri Dev Krupa Ship Breaking (supra) came to be heard by the Division Bench of this Court and vide judgment and order dated 26-7-2012, the Division Bench of this Court has allowed the said Tax Appeal No. 537/2004 and has quashed and set aside the order passed by the learned CESTAT and has answered all the questions which are common in the present Tax Appeal also, in favour of the Revenue and against the assessee. Therefore, as such substantial questions of law raised in the present Tax Appeal are already answered in favour of the Revenue and against the assessee, by the Division Bench of this Court in Tax Appeal No. 537/2004. The aforesaid is not disputed by Shri Paresh Dave, learned Counsel appearing on behalf of the respondent.
(3.) When a pointed question was asked to Shri Dave, learned Counsel appearing on behalf of the assessee that whether any Cross Objection or Cross Appeal has been filed by the assessee, he has fairly conceded that the assessee has neither filed any Cross Objection nor Cross Appeal, against the decision of the learned CESTAT. He has also fairly conceded that even no such grievance was raised earlier and the aforesaid issue is raised for the first time now, when the decision in Tax Appeal No. 537/2004 in the case of Shree Dev Krupa Ship Breaking (supra) is against the assessee and in favour of the Revenue. He has also fairly conceded that question with respect to levy of additional Customs duty on ships and vessels under Head No. 89.08 of the Customs Tariff Act was neither raised before the learned CESTAT nor the said question arise in the present Tax Appeal. Therefore, the submission on levy of additional Customs duty is raised now for the first time. Therefore, it is required to be noted that no question of law is framed with respect to levy of additional Customs duty on ships and vessels and rightly not raised as no such question was raised before the learned CESTAT. Therefore, now it is not open for the assessee to raise the question with respect to levy of Additional Customs duty on ships and vessels which was never raised earlier. It is required to be noted that earlier before the learned CESTAT the respondent-assessee heavily relied upon the decision in the case of Shree Dev Krupa Ship Breaking (supra). Even the Division Bench of this Court also earlier dismissed the present Tax Appeal considering the decision of this Court in the case of Shree Dev Krupa Ship Breaking (supra) in Tax Appeal No. 537/2004. The Hon'ble Supreme Court reversed the decision of this Court in the case of Shree Dev Krupa Ship Breaking (supra) in Tax Appeal No. 537/2004 and also set aside the order passed by this Court in the present Tax Appeal, which was dismissed relying upon the decision in Tax Appeal No. 537/2004. While remanding the matters/appeals to this Court, the Hon'ble Supreme Court also framed the aforesaid questions of law and remanded the matter to this Court to consider the aforesaid questions of law only.