AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 73
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt of vessel 'MT Navdhenu Sana' and sought quashing of the impugned order on this ground. We, therefore, take up this issue for determination before proceeding to consider the other pleas of the appellants. 2. 'MT Navdhenu Sana', an 'anchor handling' tug built in China and registered by its owners at Singapore under the name and style of 'GB Sea Snapper', was bought and taken delivery of in January 2011 by M/s Arcadia Shipping Ltd. As it was now owned by an Indian entity and as required under Merchant Shipping Act, 1958, a provisional registration was accorded. It arrived at Mumbai on 24th February 2011 and was lying at the Great Offshore Docks for repairs after permission for entry was accorded upon filing Import General Manifest no. 2007....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s issued on 12th January 2011 which was extended on 14th June 2011 for a further period of six months till 11th January 2012. As early as December 2010, they had also applied for a licence for a period of sixty months. 5. It is the contention of the appellants that the vessel was brought into India to tow a ship imported for breaking and that it was intended for use outside India. We note that the vessel has been subjected to payment of duty and that it was exported. The dispute over levy of this duty and adjudication thereof, in the context of section 74 of Customs Act, 1962, appears to be academic. 6. Learned Counsel for appellant-company contends that the adjudicating Commissioner lacked jurisdiction to adjudicate upon the matter in vi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 24th February 2011. The logic of his inference that the master of the vessel was also mandated to include the vessel as 'goods' would empower every Commissioner at every port of call to invoke jurisdiction at any time during the sailing life of the vessel. The said provision, undoubtedly, requires declaration of 'goods' but such declaration is for the limited purpose of ensuring that section 32 is complied with. Even if the law prescribes that only manifested cargo can be unloaded at the specified port, there is no converse mandate that cargo manifested for that port have necessarily to be unloaded there; failure to land manifested cargo is not visited with confiscation under section 111 but under section 116 of Customs Act, 1962. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the show cause notice. This aspect requires some discussion. 9. It is now settled law that goods that as per section 125 of Customs Act, 1962 have been confiscated and allowed to be redeemed on payment of fine in lieu of confiscation is denied the privilege unless appropriate duty has been paid. This is considered to be a provision in the Customs Act, 1962 parallel to section 28 of Customs Act, which, incidentally, was invoked in the show cause notice, with the substantive difference of there being no bar on limitation and sans the requirement of determination of duty not-paid or short-paid devolving on the 'proper officer.' Section 125 itself does not mandate determination by the 'proper officer' but requires compliance with liabili....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ire duty payment to be a condition of redemption of the vessel. 10. Even if the confiscation was valid, fastening of duty liability as a condition for release requires either determination of the duty by the 'proper officer' or determination of duty by the person who avails of the offer of redemption. It is seen that the bill of entry no. 4846251 dated 5th October 2011 was pending for assessment at the time of sailing of the vessel and issue of port clearance. From a plain reading of section 125, the legislative intent is clear in that the offending goods are liable to be held back till duty is paid with duty liability being assessed in the manner prescribed in law. Consequently, for invoking the duty payment clause of section 125, the jur....