TaxTMI 
TaxTMI 
2018 (11) TMI 1101
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....h suction/discharge pipe dia 850 mm (named as DHARTI XII) with spare parts, pipeline and accessories. Along with bill of entry, the main appellant had filed Invoice No. MG/101/06/2007 dated 06.06.2007 raised by M/s Mean Good International Ltd, Singapore, Bill of Lading bearing No 10110 dated 21.06.2007 and packing list issued by M/s China National Machinery Import & Export Corporation, on account of Mean Good International Ltd; the main appellant classified the goods imported under Customs Tariff Heading 8905.10.00 and claimed 'NIL' rate of duty for the goods under exemption Notification No. 21/02-Cus dated 01.03.2002 against Sl No. 353A. The said bill of entry was verified with the information and the goods were allowed to be cleared on 21.07.2007. Subsequently on an intelligence gathered by the Authorities indicated that appellant had imported 30 Nos of self-floating pipes of 650mm dia which were not intended for use with the dredger imported and the main appellant was planning to remove the said pipes to some other place. The officers visited the Krishnapatnam Port and found that six trailers belonging to M/s Bombay Goods Freight Carriers were found to be loaded with self-floati....
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....ating authority has not considered the law settled by the Apex Court. He submits that the pipes which were imported along with dredger were declared as dredger along with spare parts and accessories (all details as per invoice and packing list). Learned counsel then draws our attention to the bill of entry filed by them and submits that the bill of entry was filed along with invoices, shipping bill etc. and drawing our attention to the packing list attached with the documents, he submits that the packing list specifically indicates that both the pipes 850 mm dia and 650 mm dia were declared as dredger pipes and there is no incongruity. He would also submit that the specification enclosed that the invoice of cutter suction dredger include suction pipes and also discharge pipes. Further he submits that the reliance which has been placed by the lower authorities on the bills of lading which indicated separate movement of dredger and suction pipes, it is the submission that appellant had procured the dredger with all parts and accessories from M/s Mean Good International ltd which had procured all the items required from different sources which supplied to appellant the dredger along w....
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....e cutter suction dredger. It is his submission that the adjudicating authority has incorrectly appreciated the decision of the Tribunal in the case of Boskalis Dredging India Pvt Ltd (supra) and has held that the Tribunal did not take into account general interpretation rules of Customs Tariff Act for classification of the subject goods. He would submit that this interpretation of the adjudicating authority of the Tribunal's decision is incorrect and has also held that dismissal of the appeal by the Apex Court cannot be said that the decision is final. He would draw our attention to the dismissal of appeal of the Revenue in the case of Boskalis Dredging India pvt Ltd and submits that Apex Court has held that the civil appeal has been dismissed and submits that the Apex Court has time and again categorically held that once statutory right of appeal is invoked, dismissal of the appeal by the Hon'ble Supreme Court whether by a speaking order or non-speaking order doctrine of merger applies, unlike in the case of dismissal of special leave petition as per Apex Court in the case of Pernod Ricord India (Pvt) Ltd Vs CC ICD, Tughlakabad [2010(256)ELT 161 (Tri-SC)]. It is his submission....
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....it that in the assessee's own case, Commissioner of Customs and Central Excise Guntur Vs Dharti Dredging & Infrastructure Ltd [2010(249) ELT 54 (Tri-Bang)], the exemption was granted to the same appellant by the lower authorities but on an appeal, the Tribunal reversed the same holding that the pipes which were imported cannot be considered as parts or accessories of a dredger and are classifiable separately. He produces a copy of the said order and also the judgement of the Tribunal in the case of CC TUTICORIN Vs JAN DE NUL [2003(161) ELT 642 (Tri-Che)] on which reliance was placed. It is his submission that since in the appellant's own case, a view has been expressed by the Tribunal, the same should be considered as applicable in the case in hand. 5. Learned counsel in rejoinder submits that in the case of appellant, as decided by the Tribunal and relied upon by the learned A.R, the imports projecting so many units and two units and some of the parts kept on barge separately and two bills of entries were filed for such imports. Hence benefit of exemption was not extended by the Tribunal. He draws our attention to the findings of the Tribunal and more specifically the fac....
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....not enclosed with the import documents. 8. On factual matrix, we find that statement of Shri A.P Vitthal, the Executive Director of the appellant was recorded on 29.08.2007 wherein he as shown all the documents and various questions were asked. We specifically reproduce the following from relevant questions and answers from the statements: "Q.9. Shri B. Krishnamurthy, General Manager of your company at Krishnapatnam Port while deposing his statement on 13.08.2007 produced a copy of the packing list wherein an Annexure titled as "Annexure A" was attached. It is seen from page 6 of the said Annexure A, the goods mentioned in the packing list are supplied by M/s. Zhejiang Fangyuan Ship Industry Co., Ltd. However, it is seen the Bill of Lading No. STVII/0607 dated 07.06.07, a packing list was enclosed. As seen from the packing list, the same was signed by M/s. Meangood International Ltd. Please confirm which is the authenticated packing list actually accompanied the imported goods. A. The packing list submitted by Mr. B. Krishnamurthy during his deposition dated 13.08.2007 is a draft unsigned packing list. We confirm the packing list as attached to the commercial invoice of M/s. Mea....
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....es the type of CSD will not be able to work. The pipeline for a particular dredger will be based on operations it is carrying out. Based on techno commercial evaluation, a decision will be taken by the company either to import pipeline alongwith the Dredger or to procure it indigenously but the company cannot dispense with procurement of pipeline for any Dredger. Q. 21. Please confirm whether you are in possession of reducers for connecting 850 dia pipes to 650 mm dia pipes at present and also inform that whether reducing the diameter of floating pipes is a operational requirement for performing discharge function in any dredging operation. A. Reducers are available at Hazira where Dharti-XII will be deployed after completing initial work at Krishnapatnam Port. Depending on soil condition and pumping distance involved, operations require reducing the dia of the floating pipe to achieve desired output quantity at a particular pressure. Q. 22. Please see the internal correspondence of your company recovered on 13.08.2007. It is seen from the document that you have proposed to dispatch the self floating pipes 650 mm dia pipes imported at Krishnapatnam Port directly to Hazira and to....
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....independent items. Both sides have vigorously argued in support of their views." After considering submissions from both sides, in from paragraph No 10 and 11 Bench held as under: "10. From the definitions of various Dredgers as extracted above, we find that Dredging, no doubt, means excavation. But there is definitely a need for continuous lifting of the dredged material and dumping the same at some other place. This can be done by a separate disposal system or discharge system can be a part of the Dredger by itself. Referring to the British Standard Specification (BS 6349, Part -5: 199), we find that there are various types of Dredgers like Stationary Suction Hopper Dredger, Trailing Suction Hopper Dredger, Cutter Suction Dredger etc. The Dredger in the instant case is a Cutter Suction Dredger in contrast to the Hopper Dredger which keeps the dredged material in its hold (hopper). When the hold is filled up, the said Hopper Dredger moves to the designated area of discharging dredged materials without the assistance of any pipelines. In such type of Hopper Dredgers, neither the Suction Pipe nor the Discharge Pipe may be essential. In the case of Cutter Suction Dredger, the proce....
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....t process. Pipelines fall into the following two categories." 11. From the above description of the Cutter Suction Dredger also, we find that Pipelines attached with the Suction Dredger forms an indispensable part of the main mother craft. The cutterhead, which may be electrically or hydraulically driven, encloses the suction intake of a centrifugal dredge pump. The cutterhead is mounted at the extremity of a fabricated steel structure, termed the 'ladder', which also supports the suction Pipe. The technical and practical requirement of disposal of the dredged material makes the Pipelines a part of the main Dredger. We find that the evidence relied upon by the appellant firm in the shape of the British Standard Specification, strongly favour their case. Accordingly, we hold that the various types of Pipelines are a part of the Dredger itself, qualifying for their classification under Chapter 8905.00 as Dredgers and therefore, they are entitled to the exemption Notification No. 133/87-Cus., dated 19-3-87. As we have held Pipelines as a part of the Dredger enjoying exemption under Notification No. 133/87; the appellants further claim of exemption under Notification No. 106/9....
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.... are incorrect, as the findings of the Tribunal in that case in paragraph No 6 state as under: "6. We have gone through the records of the case carefully. It is seen that the Commissioner (Appeals) has not given any reasons for treating the dredging pump, engines, pipes, etc. as integral part of the dredger. Moreover, at the time of import of these goods, the goods were under different ownership. Further, it is seen that the importer purchased the dredging pump and other goods for regular usage and not exclusively for the dredger in question. In the case of CC Tuticorin" v. Jan De Nul N.V. (cited supra), the Tribunal has examined the entitlement of the pumps imported and used for sucking the dredged materials. It has been held that the said pump is classifiable under separate heading and the same cannot be considered as parts of dredger and, therefore, the notification benefit cannot be given under notification 23/98-Cus. and 20/99-Cus. The following observations of the Tribunal in the above case are very relevant. "53. Pumps : The Commissioner has not given the classification of the item but has merely held that they are used to suck the dredged material and push through the pip....