TaxTMI 
TaxTMI 
2024 (7) TMI 1715
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....l switch board, two 4 roped Liebherr cranes of SWL 30Tons 28 Meter outreach, installed on pedestals on deck with 2 nos. Mitsubishi marine engines with gear box kept on deck for the self propulsion". They had filed Bill of Entry No.06/08 dated 05.03.2008 declaring the goods as "ocean going deck barge" and classified the same under Chapter sub-heading 89011040. Along with Bill of Entry, they have filed copy of Memorandum of Agreement of goods / materials. Since the description declared in the Bill of Entry and other documents filed did not conform, the Department examined the goods on 05.03.2008 and on the basis of the report, it was classified under Chapter sub-heading 89059090 after receiving the response on the queries raised by the Department, on provisional basis. The respondent paid the duty of Rs.3,05,50,461/- under protest against the classification under Chapter sub-heading 89059090. Thereafter, a show-cause notice was issued to the respondent on 18.03.2008 proposing its classification under CSH 89059090. The Assistant Commissioner after affording an opportunity of personal hearing, classified the goods under CSH 89059090 and appropriated the duty paid by the respondent. Agg....
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....ssel is dumb and it is towed by tug. It is not designed for carrying persons or goods; it is a crane mounted barge which is having main function of transporting bulk cargo from barge to ship and ship to barge in stationary position. Further, he has submitted that the Survey Report No.2008/018 dated 09.03.2008 mentioned that the vessel is dump barge and as such does not have any propelling machinery, the vessel was transported to Karwar from the last port Singapore by towing. It is further submitted that in the case of Adani Enterprises Ltd. Vs. CC, Mangalore [2017(357) ELT 1135 (Tri. Bang.)], it is held that bump barge mounted with crane and not having any engine for self-propulsion is classifiable under Chapter Heading 8905 and not under heading 8901; also they have placed reliance on the judgment of this Tribunal in the case of Sesa Sterlite Ltd. Vs. Commissioner [2018(362) ELT A234 (Tri. Mum.)], which was upheld by the Hon'ble Supreme Court reported in 2019(368) ELT A157 (SC). Further, he has submitted that in the assessee's own case, Salgaocar Mining Industries Pvt. Ltd. Vs. CC, Vijayawada [2019(365) ELT 842 (Tri. Hyd.)], it is held by the Tribunal that ocean going deck barge m....
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....mit or exclude any kind of barges from Chapter sub-heading 89011040. Referring to HSN, he has submitted that heading 8901 includes barges of all kinds. Further, he has submitted that the learned Commissioner(Appeals) has erred in referring to CBEC Circular No.1/2005-Cus dated 11.05.2005. Also he has submitted that the decision of the learned Commissioner(Appeals) in Order-in-Appeal No.119/2010 dated 28/05/2010 in relation to barge viz. Andheri Nagari (appeal No.C/2028/2010) which is structurally and functionally similar in the case of other two barges viz. "Olympic Belayan" and "Chowpatlal" is binding on the assessing officer, hence the correct classification of the said barges is CSH 89011040. 6. Heard both sides and perused the records. 7. The short question involved in the present appeals is whether classification of transhipment vessels viz. Andheri Nagari, Olympic Belayan and Chowpatlal imported against Bills of Entry No.06/2008 dated 05.03.2008; No.089/2009 dated 07/12/2009 and No.77/2009 dated 18.11.2009 be under CSH 89011040 as claimed by the assessee or under CSH 89059090 as held in the impugned orders. 8. The appellant-assessee in their submission while contestin....
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....pth). The vessel has a built up flat deck above which the following items are installed i) 2 Nos 4 roped Liebherr rotating drum type cranes of SWL 30tons with 28 Mtr outrich with 2 nos grabs. These cranes are having huge pedestal installed on one side of the vessel ii) 2Nos BEDESCHI ship loaders with conveyor belts installed on another side iii) Built up covered conveyor belt system having 2 hoppers with apron feeders iv) 3 units of self contained 1250 KVA diesel generators with electrical switch board v) 3 decked crew cabins for 20 persons vi) At the centre portion of the vessel there is a built up coaming of about 3 mtrs height above deck which provide cargo space above the deck. vii) Separate cabin for controlling the movement of the cargo through conveyor belt The vessel has 2 No Mitsubishi marine engines of capacity 691 KW. The vessel has one anchor windlass, anchor chain with shackles, 3 mooring winches. GRT of the vessel is 4960 and NRT of the vessel is 1488. As per ship registry, the vessel can be engaged on voyages of not more than 20 nautical miles from the nearest land (Annexure C 7). The vessel arri....
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....s issued by ABS, certificate no YY204138- 000000-001 dated 8th May 2009" and also mentioned NO CARGO SPACE. Thereby the vessel Olympic Belayan is specially designed and constructed for mounting the subject crane and its accessories required for crane operation and gives required buoyancy. The LHM 400 Liebherr crane is having sl no 140134. The crane has 64 tyres and presently rested on 4 hydraulic outrigger arms. It has Boom, ropes, rotator and grab hooks. The crane has one tower cabin and one slewing platform cabin. The crane is rotating type and can be rotated 360 degree. The crane can be used for loading and unloading operations of bulk cargo from barges to ships visa- versa, in stationary position by standing in between them. The photographs enclosed". 10. On the basis of the examination reports and also from the description of the items as given in the Memorandum of Agreement of the respective vessels, the adjudicating authority in all the three cases concluded that the imported vessels are not the type of vessels like cruise ships, excursion boats and similar vessels principally designed for the transport of persons; ferry boats of all kinds; it is a dumb and to be....
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.... (5) Cargo vessels of all kinds (other than tankers and refrigerated vessels), whether or not specialised for the transport of specific goods. These include ore vessels and other bulk carriers (for the transport of, e.g., grain, coal), container ships, Ro-Ro (roll-on-roll-off) ships and LASH-type vessels. (6) Barges of various kinds, lighters and pontoons being flat-decked vessels used for the transport of goods and, sometimes, of persons. (7) Vessels of the hydroglider type, hydrofoils and hovercraft. 89.05 - Light-vessels, fire-floats, dredgers, floating cranes, and other vessels the navigability of which is subsidiary to gesin function, floating docks; floating or drilling or production platforms. 8905.10 Dredgers 8905.20 Floating or submersible drilling or production platforms 8905.90 Other This heading covers: (A) Light-vessels, fire-floats, dredgers, floating cranes, and other vessels the navigability of which is subsidiary to their main function. These normally perform their main function in a stationary position. They include: light-vessels; drill-ships; fire-floats, dredgers of all ki....
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....2013 claiming its classification under CSH 89019000 whereas the Revenue rejected the said classification and classified under CSH 89059090. The relevant paras of the said judgment are reproduced below:- 4.3 From the structure of Chapter 89, it is quite evident that navigability is not a criteria for determination of the Classification under the said chapter. Navigability would be one of the features for all the goods classifiable under chapter 89. In Chapter 89, vessels performing specific functions are classified on the basis of the function performed although they may have navigability, self propulsions and cargo carrying facility i.e. fish vessel (8902), Tugs (CTH 8904), dredger, a salvage ship, house boat (CTH 8905), Warship, pilot boat, hospital ship (CTH 8906) are classified in separate headings and they obtain their essential character from the general structural design of the vessel and the equipments fitted onto the vessel to perform a specialized task. However the classification of the vessels cannot be determined on the basis of that criteria. Classification of any vessel is based on its essential character ascertained on the basis of the functional features, st....
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....etc, but none of these certificates identify the essential character and function of the said vessel. Further these certificates cannot be the sole basis of classification under the CTH and the classification needs to be determined only after ascertaining the main/ essential function intended/ performed by the vessel and terms of the relevant tariff heading. Reliance In this regard is also placed on the case of Indian Aluminium Cables Ltd. v/s UOI (1985 (21) ELT 3 (SC) and Akbar B Jiwani v/s Commissioner Customs 1990 (48) ELT 441 wherein it was held that the "ISI specification were not relevant (for classification under Customs Tariff) when they are only meant for quality control". 14. The said judgment of the Tribunal was upheld by the Hon'ble Supreme Court. In the present case also, the barges were not principally designed for transportation of persons and goods but it is flat bottomed dumb fitted with floating crane barge, designed for transhipping goods from daughter vessel to mother vessel and vice versa at stationary position. Also, it cannot be classified under CSH 89019000 as the same is not principally designed for transport of either persons or goods since it has no pr....