2019 (11) TMI 22 - AT - Customs

Tribunal ruling on vessel classification & customs violations: Exemptions upheld, penalties reduced

M/s. Devshi Bhanji Khona (DB Khona), Focus Energy Ltd, Nicolas Singhal Master, GAC Shipping (India) Pvt. Ltd Rep. by its PoA, Mr. Dicky Philip. T Versus C. C-Cochin-Cus

M/s. Devshi Bhanji Khona (DB Khona), Focus Energy Ltd, Nicolas Singhal Master, GAC Shipping (India) Pvt. Ltd Rep. by its PoA, Mr. Dicky Philip. T Versus ... Issues Involved:1. Classification of the vessel 'Mercury Focus' as a foreign-going vessel or goods.2. Requirement for declaring the vessel and tug as goods in the IGM and related misdeclaration.3. Applicability of Notification No.12/2012 (Sl.No.359) dated 17.03.2012 for exemption.4. Classification of the tug 'MV Shunter' under Customs Tariff Act, 1975.5. Validity of amendments to the IGM.6. Eligibility for exemption on ship stores, consumables, and spare parts.7. Sustainability of penalties imposed on various parties.Detailed Analysis:1. Classification of the Vessel:The vessel 'Mercury Focus' was initially brought for repairs and later moved for exploration. It was argued that while undergoing repairs, it retains its character as a foreign-going vessel. However, the Tribunal referenced the case of Aban Loyd Chiles Offshore Ltd., holding that a rig entering Indian territorial waters for repairs loses its character as a foreign-going vessel. Thus, the vessel is treated as goods, not a foreign-going vessel.2. Declaration and Misdeclaration in IGM:The appellants did not declare the vessel and tug as goods in the IGM, violating Sections 30 and 32 of the Customs Act. Despite informing the customs about the vessel's activities, the non-declaration in the IGM was considered a misdeclaration, rendering the goods liable for confiscation under Sections 111(f), 111(g), and 111(h) of the Customs Act.3. Applicability of Notification No.12/2012:The exemption was initially denied as the essentiality certificate was obtained in 2012, while the import occurred in 2011. However, the Tribunal held that the exemption is applicable as the vessel and tug were not put to use for petroleum operations without the essentiality certificate. The exemption was correctly availed when the essentiality certificate was obtained before deployment for petroleum operations.4. Classification of the Tug 'MV Shunter':The tug was classified under CTH 8901 as a supply vessel with additional features for towing. Documents such as the class notation certificate and safety management certificate supported this classification. The Tribunal upheld this classification, making it eligible for exemption under Notification No.12/2012.5. Validity of Amendments to the IGM:The amendments to the IGM were initially allowed by the lower authorities but later contested by the department. The Tribunal found that the amendments were permissible under Section 30(3) of the Customs Act, as there was no fraudulent intention. The lower authorities' decision to allow the amendments was upheld.6. Exemption on Ship Stores and Consumables:The Tribunal held that the vessels were not foreign-going vessels, thus not eligible for free supply of bunkers and ship stores. The demand for duty on ship stores and spares supplied to the vessels was upheld but limited to the normal period, as the activities were within the knowledge of customs.7. Penalties:The penalty on M/s Focus Energy was set aside as they were eligible for exemption. However, penalties on other parties were reduced, considering the nature of the misdeclaration and the lack of personal or professional gain. The penalties were reduced for M/s DB Khona, M/s GAC Shipping, and the Master of AHTS MV Shunter.Conclusion:The appeals were partly allowed, with the Tribunal reducing penalties and upholding the eligibility for exemption under Notification No.12/2012. The issue of duty on ship stores and spares was remanded back for re-determination for the normal period. The amendments to the IGM were upheld as valid.