2005 (98) ECC 317 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

West Zonal Bench -- Mumbai

Ms. Jyoti Balasundaram, Vice President and Shri S.S. Sekhon, Member (T)

Bhikkamal Chhotelal

Versus

CCE

Appeal No. C/1284-R/99-Mum

[Arising out of Order-in-Appeal No. 885/99(141-CCP) Cus. dated 11.6.99 passed by the Commissioner of Central Excise (Appeals)]

Order No. CB/A/751/WZB/04, dated 16.9.2004, Certified on 6.10.2004

Notification No. 72/97-Cus., dated 16.9.97

Duty -- Customs -- Enhancement of special customs duty from 2% to 5% vide Notification 72/97 dated 16.9.97 was not applicable to the appellant on 16.9.97 in the light of the Supreme Court decision in the case of CCE v. New Tobacco Co., 1998 (97) ELT 388 (SC).

Board Circular No. 37/96-Cus., dated 3.7.96

Duty -- Bill of entry -- Rate of duty against Chapter Heading 8908.00 and 9805.10 was shown as 2% and not as 5% -- No Bill of entry filed for clearance of excess bunker on board other than the bunker in the engines and machines -- Duty on excess bunkers and food stuff on board in terms of clause 2(d) of Board's Circular No. 37/97 is applicable.

Appeal rejected.

PRESENT :

Shri A.D. Maru, Adv. for the appellant.

Shri K.K. Srivastava, JDR for the respondent.

Case Cited :

CCE v. New Tobacco Co., 1998 (97) ELT 388 (SC).............................................. [Para 2]

Per : Ms. Jyoti Balasundaram

The appellants herein filed Bill of Entry on 15.9.97 which was noted on 16.9.97 for clearance of vessel M.V. CONSTRANTINOG.M for home consumption for breaking. It was noticed on scrutiny of the bill of entry that the rate of duty against Chapter Heading 8908.00 and 9805.10 was shown as 2% and not as 5% and further it was noticed that no bill of entry had been filed for clearance of excess bunker on board other than the bunker in the engines and machineries. These discrepancies were pointed out to the appellants and vide letter dated 29.9.97 corrected the bills of entry as regards the rate of duty, but neither declared nor filed bill of entry for clearance of excess bunkers. Show cause notice proposing to recover duty on the excess bunkers was issued; the adjudicating authority assessed the bill of entry asking them to pay total duty of Rs. 1,13,01,123 for the clearance of the vessel including duty on vessel, bunkers and foodstuff on the board. Commissioner (Appeals) upheld the adjudication order; hence this appeal.

2. On hearing both sides, two points arise for determination, namely, as to whether enhancement of special customs duty from 2% to 5% vide Notification 72/97-Cus dated 16.9.97 is applicable to the appellants. We find that the Commissioner (Appeals) has given a clear finding in para 6 of the order that the notification enhancing rate of special customs duty was published in the Official Gazette and made known to the public on 16.9.97 itself. Appellants have also not brought on record any material to show that the Notification 72/97 was published in the Official Gazette on a date other than 16.9.97. Therefore, the appellants have been correctly charged special customs duty at the enhanced rate of 5% of the Bill of Entry on 16.9.97 in the light of the Supreme Court decision in the case of CCE v. New Tobacco Co., 1998 (97) ELT 388 (SC).

3. The second question is as to whether the appellants are liable to duty on excess bunker and foodstuff on board in terms of clause 2(d) of Board's Circular No. 37/96-Cus dated 3.7.96. The Master of the vessel has declared the quantities of fuel and oil and foodstuff as present on the board, which was other than the fuel and oil in the engine room and engine tanks. Therefore, clause 2(d) of the Board Circular was correctly applied to the appellants and the assessment is proper. In this regard nothing has been brought on record to show that the quantity of fuel and oil on which duty has been levied was in the engine room and engine tank as even the Surveyor's report dated 23.8.97 only states that the vessel had on board sufficient useable/pumpable bunkers and fresh water and does not specify as to what is the quantity of fuel present in the engine tank and engine.

4. The plea raised by the appellants that even if they are liable to pay duty on diesel oil as per clause 2(d) of Circular No. 37/96, they are liable to pay duty on a quantity of 18.9 MTs diesel oil only as the Superintendent of Customs has written to the appellants on 30.9.97 that the vessel when boarded at Alang Anchorage point had a quantity of 18.9 MT diesel oil, while they have been made to pay duty on a quantity of 89.9. MT of diesel oil, is not acceptable at this stage as no bill of entry was filed for the excess bunker and it is not possible to ascertain now as to what would be the quantity of diesel oil because of the statement of the appellants.

5. In the result of both the counts, the appeals fail. We uphold the impugned order and reject the appeal.

……………………