TaxTMI 
TaxTMI 
2012 (9) TMI 643
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....in the business of ship breaking and petitioner No. 2 is Managing Partner of petitioner No. 1. 4. Respondent No. 5 Commissioner of Customs, Chennai floated tender for sale of confiscated vessel/ship named M.V. GLORIA KOPP which stipulated various conditions. As per the said tender notice amongst other, the conditions nos. 10 and 11 read as under : "10. TAXES & DUTIES : will be charged extra as per TNGST Act as applicable on date of billing and should be paid along with balance payable amount to the Commissioner of Customs, Custom House, Chennai." 11. NO CUSTOM DUTY ON SALE VALUE : The ship is confiscated and will be sold by tender by the Indian Custom Authorities and hence no custom duty will be charged extra on sale value from the purchaser". 5. The petitioner firm made an offer for purchase of the said vessel for an amount of Rs. 2,36,00,000/-. The said offer made by the petitioner was accepted by respondent no. 5 vide communication dated 21-11-2001. It is the case of the petitioners that the petitioners complied with the conditions of the tender and also paid the sales tax as per the condition of the tender and accordingly the statutory order of bill of s....
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....breaking and therefore opined that the petitioner is required to pay customs duty under CTH 8908. 7. The petitioner on receipt of the said communication from respondent no.3 approached respondent no. 5 vide communication dated 3-1-2002 informing him about the stand taken by respondent no. 3, asking the petitioner to pay customs duty and requested for clarification in the said regard. The respondent no. 5 again vide communication dated 7-1-2002 informed the petitioners that as per clause 11 of the tender condition no customs duty is leviable. 8. Being aggrieved by the said communication dated 31-12-2001 the petitioners have filed this petition under Articles 226 and 227 of the Constitution of India. It may be noted that at the time of admission of the matter vide order dated 14-2-2002 this Court (Coram : D.M. Dharmadhakari C.J. and D.A. Mehta, J. as they then were) by an interim relief have passed the following order : "2. Having heard both the sides, we direct the respondents that they shall permit the petitioner-firm to beach the vessel - M.V. GLORIA KOPP at Alang Port, District Bhavnagar, after permitting them to reduce the weight of the vessel by breaking up ne....
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....hwhile to note that Ms. Yajnik appearing for respondent nos. 1 to 4 has stated before the Court that she has received written communication from respondent no.5 i.e. Assistant Commissioner of Customs (Warehouse and Disposal), Chennai reiterating the stand that as per condition no. 11 attached with the tender notice no customs duty is leviable. 13. Mr. Gupta, learned Counsel has submitted that the vessel purchased by the petitioners in response to the tender notice issued by respondent no.5 was a confiscated vessel as contemplated under Section 126 of the Act and therefore, the same cannot be considered to be an imported goods. The learned Counsel Mr. Gupta further submitted that the petitioners are not the importers as defined under Section 2(34) of the Act as the vessel in question on being confiscated as per Section 126 of the Act was a property of Central Government and, therefore, the transaction between the petitioners and respondent no. 5 cannot be termed as 'Import'. Mr. Gupta therefore submitted that the provisions of Section 46 would not be applicable. 14. Mr. Gupta further submitted that as per condition no. 10 of the tender notice the petitioner firm has alre....
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....es it would be necessary to refer to the relevant provisions of the Customs Act which are as under : ''(22) 'goods' includes - (a) vessels, aircrafts and vehicles; (b) stores; (c) baggage; (d) currency and negotiable instruments; and (e) any other kind of movable property; (23) 'import', with its grammatical variations and cognate expressions, means bringing into India from a place outside India; (24) xxx xxx xxx (25) 'imported goods' means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption; (26) 'importer', in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer; xxx xxx xxx 46. Entry of goods on importation.- (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the ....
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....der the provisions of the Act and which had vested in the Central Government and put to auction sale by respondent no. 5 as property of the Central Government. 18. It is an admitted position that the said vessel was confiscated under the provisions of the Act by respondent no. 5 and by tender notice 'Annexure-B' to this petition the same was put to sale as a confiscated good at Chennai. The word 'import' as given defined under the Act would mean bringing any goods which includes vessel into India from outside India. Similarly the words 'imported goods' mean any goods brought into India from a place outside India and similarly word 'importer' would mean a person who brings any goods by way of import. 19. It is an admitted position that respondent no. 5 authority had confiscated the said vessel under the provisions of Section 126 of the Act and as provided under Section 126 on confiscation the said vessel vested in the Central Government and it was sold to the present petitioners as a property of the Central Government. 20. Similarly Section 46 provides for the procedure which an importer is supposed to follow while bringing goods by way of import into the territory....