TaxTMI 
TaxTMI 
2023 (11) TMI 114
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....on 14 of the Customs Act, 1962. Other penal provision and other charges were also invoked. The appellant was also show cause as to why a penalty under Section 112 (a) of the Customs Act, 1962 on them. On adjudication of the matter by the learned adjudicating authority vide its order dated 23.01.2013. A penalty of Rs. 5,00,000/- has been imposed on the appellant under Section 112(a) if the Customs Act, 1962. The appellants are before this Tribunal against the impugned Order-In-Original imposing personal penalty on the appellants. Learned Advocate has submitted that the charges of under invoicing misclassification against the importing firm M/s. Goa Coastal Resorts & Recreation Pvt. Ltd. its director of Shri. Ashok Khetrapal has already been decided by this Tribunal vide its Final Order No. A/10367-10368/2014/WZB/AHD dated 12.03.2014 and Appeal Nos. C/10948 and 10965/2013-DB reported under 2014 (304) ELT 408 (Tri-. Ahmd.). Wherein, the charge of misclassification has been dropped against importing firm. It has been contention of the learned Advocate since the matter already been decided in favour of the importing firm and its director and therefore the cause of imposing penalty again....
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....Pvt. Ltd. (supra), CGU Logistics Ltd. v. CC (I), Mumbai (supra) and Hal Offshore Ltd v. CC, Mumbai (supra), it has to be seen as to what is the nature of vessel POG. Whether it is a "Passenger Ship" or a "Pleasure vessel". The words "Passenger", "Passenger Ship" and "Pleasure Vessel" have neither been defined under the Customs Tariff Act nor in the HSN explanatory notes. The words "Passenger" and "Passenger Ship" "Special Trade Passenger" and "Special Trade Passenger Ship" have been defined under Section 3(24) and 3(25), 3(47B) and 3(47C) of the Merchant Shipping Act, 1958 as follows :- "3. Definitions. - In this Act, unless the context otherwise requires, - (24) "Passenger" means any person carried on board a ship except - (a) a person employed or engaged in any capacity on board the ship on the business of the ship; (b) a person on board the ship either in pursuance of the obligations laid upon the master to carry shipwrecked, distressed or other persons or by reason of any circumstances which neither the master nor the character, if any, could have prevented or forestalled; (c) a child under one year of age; (25) "Passenger ship" means a ship carrying more than twelv....
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....dy corporate, used only for sport or pleasure and on which the persons on board are employees or officers of the body corporate, or their immediate family or friends; and (ii) on a voyage or excursion which is one for which the "owner does not receive money for or in connection with operating the vessel or carrying any person, other than as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion; or (b) any vessel wholly owned by or on behalf of a members" club formed for the purpose of sport or pleasure which, at the time it is being used, it used only for the sport or pleasure of members of that club or their immediate family, and for the use of which any charges levied are paid into club funds and applied for the general use of the club; and (c) in the case of any vessel referred to in paragraphs (a) or (b) above no other payments are made by or on behalf of users of the vessel, other than by the owner." 5.5 Above definition of a pleasure vessel gives support to the argument made by the Advocate of the importer that a vessel for pleasure or sport should be meant for personal consumption/use of the person/owner of a....
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....claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent officers. The officer considering the refund claim cannot also review an assessment order. 8. The words "in pursuance of an Order of Assessment" only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained." (ii) Collr. of Central Excise, Kanpur v. Flock (India) P. Ltd. - 2000 (120) E.L.T. 285 (S.C.) "10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error ....