Custom, Excise & Service Tax Tribunal
M/S Hariyana Ship Breakers Ltd vs Commissioner Of Customs on 11 May, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : C/12040/2014 [Appn. No C/EH/13513/2014] [ Arising out of OIA-181-187/2014/CUS/COMMR-A-/JMR dtd 13/05/2014 passed by Commissioner of CUSTOMS-JAMNAGAR(PREV) ] M/s Hariyana Ship Breakers Ltd - Appellant (s) Vs. Commissioner of CUSTOMS- JAMNAGAR(PREV) - Respondent (s)
Represented by:
Appellant (s) : Shri Rahul Gajera, Advocate Respondent (s) : Shri G P Thomas, Authorised Representative For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Honble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. P.K.Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Honble Member (Technical) Date of Hearing / Decision : 11/5/2015 ORDER No. A/10729 / 2015 dtd 11/5/2015 Per : Mr. P.K.Das;
Applicant filed this application for Early Hearing of the appeal. We find that the appeal may be decided at this stage.
2. After hearing both the sides and on perusal of records, we find that the appellant filed this appeal for setting aside of the redemption fine and penalty. The appellant imported vessels, ships for breaking purpose only and not for trading. The Adjudicating Authority imposed redemption fine and penalty for violation of the import/export policy. It was found that there was Diesel Oil (HSD, LDO) in the vessel imported for scrapping.
3. We find that on the identical issue, the Tribunal in the case of RK Industries and Others Vs. CEC., Jamnagar vide FO No A/10103-10106/2015 dtd 2.2.2015 set aside redemption fine and penalty. The Tribunal followed the earlier decision in the case of AG Enterprises and Others VS. CC (Preventive), Jamnagar, vide FO No. A/11210-11318/2014 dtd 8.7.2014. The relevant portion of the said decision is reproduced below:
4.2 As per the above provisions of Foreign Trade Policy any doubt regarding classification of any item in ITC (HS) or HPBv1 or HBPv2 or schedule of DEPB Rates should be referred to DGFT whose decision shall be final and binding. As per the clarification/opinion of Joint Director General of Foreign Trade New Delhi, surplus fuel stored in fuel tanks of vessels/ship brought for breaking up is classifiable under 89.08 along with the main vessel. In this regard, Para 18 & 19 of case law Cine Land Vs CC Chennai (supra), relied upon by the appellants, following has been held by CESTAT Chennai:-
18. We find that the appellants had applied to the? DGFT, New Delhi for a Merely because the reply was signed by the JDGFT, its validity cannot be discarded. The JDGFT is a Senior Officer in the office of the DGFT. The reply is from the DGFT as per the letter-head. Therefore, obviously the JDGFT has issued it acting in the office of DGFT as per their internal procedures. There are thousands of importers and exporters who apply for such clarifications to the DGFT. It sounds to reason that it would be physically impossible for one DGFT to personally sign replies to these apart from his numerous other responsibilities. Secondly, here there is no certification required of a named authority in the body of a fiscal notification concerning exemption from Customs duty. Such a clarification required from only a named authority is a different requirement than the issue of a clarification on import policy. Therefore, we cannot agree with ld. DR that the clarificatory letter needs to be rechecked by a reference to the DGFT on whether it reflects the opinion of DGFT as it is signed by JDGFT.
19. We also find that it is now a well settled law? that clarifications on Import Policy issued by office of DGFT is binding on Customs as far as ITC Policy is concerned in view of the decisions cited by ld. Senior Advocate supra clarification on these items classification under ITC (HS) and the ITC Policy.
4. In view of the above, and following the earlier decision of the Tribunal, we set aside redemption fine and penalty. The appeal filed by the appellant is disposed of in the above terms. The early hearing application is also disposed of.
(Dictated and pronounced in the Court) (H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial) swami ??
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