COMMISSIONER OF CUSTOMS PREVENTIVE Vs. MUSTAN TAHERBHAI

JUDGEMENT

(1.) APPELLANT revenue has proposed the following three questions originally when the appeal was filed. Whether in the facts and circumstances of the case, respondents in whose hands the vessel was actually broken up and who had filed IGM/ Bill of Entry is liable to pay customs duty that became leviable in accordance with proviso to notification No. 163/65-CUS dated 16. 10. 1965? whether the Tribunal committed error in not following the law laid down by Hon'ble High Court in the case of M/s Haryana Ship Breakers Pvt. Ltd. reported at 1997 (96) ELT 541 (Guj) believing it contrary to the Apex Court's judgment in Jalyan Udyog reported at 1993 (68) ELT 9 (Supreme Court)? whether the Tribunal committed error as on presentation of Bill of Entry as required under section 46 (1) of the Customs Act, 1962, and filing of IGM by importer, he will be liable to pay customs duty and not the original owner of the ship? subsequently, appellant has proposed following four additional questions. Whether M/s Mustan Taherbhai is not an importer within the meaning of Section 2 (26) of the Customs Act, 1962? whether in absence of specific condition [like condition No. 65 of Notification No. 16/200-Cus. dated 2. 3. 2000] stipulating the filing of fresh Bill of Entry for breaking up and creating a legal fiction in the Notification No. 163/65-Cus. Dated 16. 10. 1965 as amended vide Notification No. 129/86-Cus. , dated 17. 02. 1986 cannot be retrospectively extended and posted to be read in notification No. 163/65-Cus. ? whether the relevant date on which the vessel is broken up would be the date on which it is taken for breaking, i. e. the date of transfer from the Shipping Corporation of India to the respondent and not the date of beaching at Alang and on that date the importer would be Shipping Corporation of India? whether as provided under Section 15 ibid, rate of duty in the case of goods entered for home consumption under Section 45, on the date on which a bill of entry in respect of such goods is presented under that section shall be the rate in force and accordingly in the instant case effective rate would tariff read with Sr. No. 298 of Notification No. 16/2000-Cus. dated 1-3-2000 subject to condition No. 65?

(2.) THE facts, which are not disputed, are that the respondent entered into a Memorandum of Agreement on 22. 3. 1997 with M/s Shipping Corporation of India for purchase on a vessel named "m. V. Vishwa Yash" for scrapping. Shipping Corporation of India had taken the delivery of the vessel in 1973 from the manufacturer M/s Hindustran Shipyards Limited from the bonded shipyard of the manufacturer. The case of the appellant revenue is that customs duty on a vessel taken for breaking up is leviable by virtue of fiction as if the vessel were then imported for the purpose of breaking up by virtue of Notification No. 163/f No. 3/15/65 - CUS VII dated 19th October, 1965.

(3.) THE case of the respondent was that respondent is not liable to be assessed the customs duty merely because Bill of Entry No. F-2/97-98 dated 20. 5. 1997 was filed by the respondent. Revenue did not accept the contention of the respondent and provisionally assessed duty to the tune of Rs. 78,73,005/ -. Respondent carried the matter in appeal before the Commissioner (Appeals) and failed.