TaxTMI 
TaxTMI 
TaxTMI 
2017 (1) TMI 134
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....The issue involved in these appeals being the same, they are disposed by this common order. In the above appeals, some are main appellants and others are partners/directors of the main appellants who are owners of Fishing Trawlers. The appeals Nos. C/761 to 767, 769,771 to 782/2007 were heard on 17.10.2016 and appeals Nos. C/755 to 760, 1687,1688,1689,1690/2010 were heard on 03.11.2016 and appeal No. C/770/2007 was heard on 29.11.2016. The appeal Nos. 1678/2010 to 1690/2010 are filed by department against the order passed by Commissioner (Appeals) who set aside the duty demand, interest and penalty. The parties are referred to as Assessee and department hereafter for convenience. 2. The brief facts as put forward by Assessee is as under: a) The main Assessee had entered into Hire Agreement for deployment of trawlers as Chase Boat in connection with Oil exploration activities being carried out by M/s. ONGC Ltd., and M/s. Reliance Industries Ltd. The Assessee were issued Fishing Pass and NOC from Customs for getting duty free mid-sea bunkers under section 87 of the Customs Act, 1962. The mid-sea bunkering facility wa....
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....d into India in contravention of Section 11 of the Customs Act, 1962 and therefore the quantity of mid-sea duty free bunkers are liable for confiscation under section 111(d) and 111(o) of the said Act. 3. After due process of law, the original authority confirmed the duty demand along with interest and imposed penalties. In appeal, the Commissioner (Appeals) confirmed the duty demand along with interest and penalties, but however, reduced the penalty imposed on individuals. Hence the assessee are now before the Tribunal. 4. The Commissioner (Appeals) in impugned order in appeals Nos. 1687/2010 to 1690/2010 set aside the duty demand, interest and penalty holding that the fishing vessels would fall under the definition of foreign going vessel or aircraft as defined under Section 2(21) (ii) of the Customs Act, 1962. Being aggrieved, the department has filed the appeals. 5. On behalf of the Assessee, the Ld. Counsel Shri. V.M. Doiphode submitted the following main arguments: i) The officers of Customs, are appointed vide Notification No.14....
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....ndian navy and Ministry of agriculture had given clearance for undertaking activity as chase boat. Ministry of Shipping, Road Transport and Highways Department vide letter dated. 20. 09.2005 had clarified that fishing trawlers are permitted to undertake the activity such as rescue, co-ordination support in line with the fishing activity and therefore the activity undertaken by the fishing trawlers is in line with fishing activity and they had rightly availed the benefit of duty free bunkers as stores under section 87 of the Customs Act, 1962. v) The Ld. Commissioner erred in relying upon the Honorable Bombay High Court Judgment in the case of Pride Foramer Vs. Union of India-AIR 2001 Bombay 332 as that case concerns supply of imported spares or goods or equipment to the rigs by the ship and in that case the ship was employed for the transshipment and therefore not a foreign going vessel. vi) The Assessee had submitted the copies of Log Books and Advice Books to the Customs in support of their claim that simultaneously during the agreement period apart from chase boat they have undertaken fishing. There is no evidence that the....
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....am [2010 (261) ELT 825 (Tri. - Bang.)]. The Co-ordinate Bench of the Tribunal in the said case of Sagarika Sea Crafts Ltd., has analyzed the issue of jurisdiction and has held that the Customs, Visakhapatnam has no jurisdiction and therefore could not have demanded duty on bunkers received by vessels plying in the EEZ beyond territorial waters off the coast in his jurisdiction. The facts of Sagarika Sea Crafts case are identical to the facts of the present case. The relevant paragraph is reproduced as under: We find that the Commissioner held that the EEZ was part of Indian territory and the Act applied as regards the activity of petroleum exploration/production and therefore fuel consumed in connection with such activities was import into India and duty was chargeable. In holding this view, the Commissioner relied on the judgment of the Apex Court in M/s. Aban Loyd Chiles Offshore Ltd. case (supra). The Commissioner held that the liability to duty on the impugned fuel arose at the time of its consumption during the operations other than fishing, activities in the EEZ. We find from the decision of the Tribunal in Noble Asset Company Ltd. c....