2011 (5) TMI 368 - AT - Customs

Tribunal Upholds Levy on Imported Vessels & Fuel

M/s JM Industries Versus CC Jamnagar

The Tribunal rejected the appeal challenging the levy of Special Additional Duty (SAD) on imported vessels for demolition, upheld the separate ... Refund - Notification No.28/99-Cus dated 28.02.99 - Classification - issue in respect of leviability of SAD stand decided against them by the Tribunal in the case of Ghaziabad Ship Breakers Vs CC (2002 -TMI - 51598 - CEGAT, COURT NO. II, NEW DELHI). It stand held in the said decision that inasmuch as the ship imported for breaking is not for sale as such , the same is for sale of material obtained after breaking it up, the benefit of notification cannot be extended - Held that: exemption from payment of SAD in terms of Notification No.56/98-Cus,dt.1.8.98 as amended, is not available to the appellant It was held that the drinks and foodstuff not to be treated as ship stores, covered by Section 87 of Customs Act, 1962 and have to be classified in their own appropriate headings - Appeal is rejected Issues Involved:1. Levy of Special Additional Duty (SAD) on vessels imported for demolition.2. Classification and levy of duty on fuel and oil declared in the engine room tanks.3. Exemption of duty on foodstuff and consumable stores under Section 87 of the Customs Act, 1962.4. Abatement in the value of the vessel corresponding to the value of prohibited goods like cigarettes and liquor surrendered to the Customs authority.Issue-wise Detailed Analysis:1. Levy of Special Additional Duty (SAD) on vessels imported for demolition:The appellants contested the levy of 4% SAD on the imported vessel, arguing that the ship was old and unserviceable, essentially re-rollable scrap, and thus should be exempt under Notification No.22/99-Cus. The Tribunal referenced its earlier decision in the case of Ghaziabad Ship Breakers, which held that ships imported for breaking are not sold 'as such' but are broken down and sold as materials. Therefore, the exemption from SAD under Notification No.56/98-Cus, as amended, is not applicable. The Tribunal rejected the appellant's reliance on the Bombay High Court decision in Commissioner of Sales Tax, Maharashtra State vs. Delhi Iron & Steel Co. Pvt. Ltd., as it pertained to a different legal context under the Bombay Sales Tax Act, not the Customs Act.2. Classification and levy of duty on fuel and oil declared in the engine room tanks:The appellant argued against the separate classification of fuel and oil, contending they should be classified under the same heading as the vessel. The Tribunal upheld the Commissioner (A)'s decision, referencing Board's Circular No.37/96-Cus, which classified fuel and oil not contained in the vessel's machinery and engines under Chapter Heading 2710. The Tribunal also cited precedents from the Mumbai Bench, which supported the separate classification and duty levy on pumpable fuel and oil in the engine room tanks.3. Exemption of duty on foodstuff and consumable stores under Section 87 of the Customs Act, 1962:The appellant claimed exemption for foodstuff and consumable stores under Section 87, which exempts stores consumed on foreign-going vessels. The Tribunal upheld the Commissioner (A)'s decision, noting that the vessel ceased to be a 'foreign-going vessel' upon importation for demolition. Therefore, the provisions of Section 87 were not applicable, and the foodstuff and consumables were subject to duty under their respective headings.4. Abatement in the value of the vessel corresponding to the value of prohibited goods like cigarettes and liquor surrendered to the Customs authority:The appellant sought abatement for the value of cigarettes and liquor surrendered to Customs. The Tribunal found that the surrendered items were part of the master's slope chest and excluded from the sale as per the Memorandum of Agreement. Since the importer did not pay for these items, their value could not be abated from the assessable value of the vessel. The Tribunal upheld the Commissioner (A)'s decision denying the abatement.Conclusion:The Tribunal found no justifiable reason to interfere with the impugned order passed by the authorities below. Consequently, the appeal was rejected, affirming the decisions on all issues, including the applicability of SAD, the classification and levy of duty on fuel and oil, the non-exemption of foodstuff under Section 87, and the denial of abatement for the value of surrendered prohibited goods.