TaxTMI 
TaxTMI 
2018 (7) TMI 1139
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....g nil rate of duty. During the Custom's examination, it was found that the boat was not one designed for ferrying/transporting passengers on scheduled trips but was the one designed for leisure or pleasure boating and the importers did not dispute the same. Accordingly, the Department has classified the boat under CTH 89039990. 2. The respondents have filed an appeal before Commissioner (A) stating that Department has not spelt out any reason to reject the commercial invoice, the Bill of Lading and the appellant‟s claim; the respondent is registered, recognized and accredited travel agency and the import in question was for the purpose of undertaking excursions for the tourists; CTH 8903 is a general heading covering yachts for per....
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....noes". 3.1 It is not the case of importer that they were going to use the boat for transport of persons or goods; it was meant for transport of persons or goods from one point to another point. By their own admission, the boat is used for conducting excursions in the back waters; therefore, the purpose of having luxurious fittings was to make the excursion trip, actually, a luxury or pleasure trip. 3.2 The Bombay Bench of Hon‟ble Tribunal in the case of M/s. Urmila & Co. Pvt. Ltd. Vs. Collector of Customs, Bombay- 1998 (104) ELT 97 (Tribunal) held that "it is the basic design of the vessel that determines its classification" and that "a pleasure boat will not cease to be a pleasure boat when it is used for survey purposes". 3....
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....lso not requested for any special order; under the circumstances, it is relevant to state that the assessment and approval of assessment has been completely accepted by the importer; the Hon‟ble Supreme Court in the case of Escorts Ltd. 1998 (97) ELT 211 (SC) held that the Act does not prescribe any particular form in which the order or assessment is to be made; no formal order of assessment can be expected when there is no dispute to the classification, it is more like „across-the-counter‟ affair; in the case of Midland Plastics Ltd. 2002 (14) ELT 235 (Tri. Del), it was held that when assesse did not contest the assessment under Section 47 of the Customs Act, 1962 and paid duty without even lodging a protest, there could ....
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.... helm seat, Stove, Stainless steel sink, microwave, fridge, coffeemaker and solid surface counter tops; the photographs of the instant model Yacht confirmed the luxury and modern comforts; therefore, as per the ratio of the following judgments, the impugned boat needs to be classify under CTH 89.03: (i) Urmila & Co. 1998 (104) ELT 97 (Tri. Delhi). (ii) Commissioner of C. Ex Goa Vs. Waterways Shipyard Pvt. Ltd. 2013 (297) ELT 77 (T-Mum). (iii) Drishti Adventures Pvt. Ltd. 2017 (357) ELT 877 (T-Mumbai). 4.4 The Commissioner (A) erred in holding that 89 CTH, 89.03 is applicable to Yacht and vessels for pleasure and sports which is private in nature whereas the impugned boat is an all-purpose luxury "Tourist Boat".....
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....hen goods cannot be classified to (a) or (b), they shall be classified under the Heading which occurs last in the numerical order among those which equally merit consideration. Since the Rule 1,2 & 3- (a) or (b) are not applicable in the present situation, we find that under Rule 3 (c) when the goods cannot be classified by reference to Rule 3(a) & (b) they shal be classified under Heading which occurs last in the numerical order among those which equally merit consideration. Therefore, following this Rule of Interpretation the vessel in question is more appropriately classifiable under Heading 8903 of the Central Excise Tariff. We hold accordingly. 5. The learned counsel for the respondents has reiterated the submissions made before Com....
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....n the boat and the amenities it offers, there is no doubt to believe that the boat is intended to a "pleasure boat". Therefore, whatever be the actual use of the said boat, it is required to classify as per the making of the vessel; it is seen that the impugned boat is not principally designed and manufactured for the purpose of transport of persons and goods, it cannot be classify under Heading 8901; we find considerable force in the argument of the learned AR and find relevance in the ratio of the cases cited by them. 7.1 Regarding the refund application, the learned advocate for the respondents has claimed that the refund claim filed by their CHA is valid as per the ratio of Jayant B.Shah Vs. Collector of Customs Bombay- 1996 (81) ELT....