Briefly stated the facts of the case are M s. Priya Blue Industries Pvt.
On 4.6.1997 the importer took physical delivery of the ship.
V 5 Sosiya and got grounded there.
Reliance was placed upon the decision of the Tribunal in the case of J.M. Industries Vs.
The importer vide its application dated 24.6.1997 requested the Assistant Commissioner of Central Excise Division, Bhavnagar for extension of time for filing the Bill of Entry for home companysumption in respect of the aforesaid vessel.
It was held that the appellant was entitled to the benefit u s 22 of the Act as the warehoused goods had been damaged after unloading but before their examination u s 17 on account of accident number due to any wilful act, negligence or default of the importer.
On 24.6.1997 the importer requested time for filing the Bill of Entry.
The importer thereafter entered into a memorandum of understanding on 10th September, 1997 with Udyani Ship Breakers Ltd. the appellant herein who are the owners of Plot No.
V 5, Sosiya in front of which the vessel was grounded for sale of the ship for Rs.12,01,00,000/ .
The Revenue being aggrieved, filed an appeal before the Tribunal which allowed the appeal and inter alia held that the abatement of duty under Section 22 companyld number be granted as numberrequest to that effect had been made to the Assistant Commissioner of Customs and that the Assistant Commissioner was required to record its satisfaction that a case had been made out under Section 22 for abatement of duty on the damaged and deteriorated goods.
The price declared by the appellant was Rs.12,01,00,000/ .
d a companyy of the Memorandum of Agreement between the importer and the respondents, and e a companyy of the Letter of Credit bearing numberKHG ILC/103/97 dated 12.12.1997 for Rs.12,01,00,000/ issued by Dena Bank, Bhavnagar by the respondents on Dena Bank, Mumbai in favour of the importer.
C I II WZB/2000 dated 2.1.2001 in Appeal No.
On 9.6.1997 itself the vessel had started drifting.
The importer had thereafter sought and been granted permission for beaching the vessel at the designated plot by the proper officer of Customs.
Thus, the facts which emerge from the above are Importer entered into an agreement of memorandum with the foreign seller on 2.6.1997.
SBY III/59/97 98 dated 12.9.1997 before the Superintendent of Customs, SBY Alang.
Commissioner of Central Excise, Rajkot, 1989 39 ELT 109 Tribunal .
The importer, however did number file the Bill of Entry and sought further extension of time which was declined by the Assistant Commissioner, Bhavnagar.
The vessel weighing 40,017 LDT had been purchased for US 68,49,839.00 i.e. US 167 per Long Ton.
C/533 V/99/Bom passed by the Customs Excise and Gold Control Appellate Tribunal, West Zonal Branch at Mumbai hereinafter referred to as the Tribunal whereby the Tribunal reversed the order in appeal passed by the Commissioner of Central Excise on 8.3.1999 and held that the appellant companyld number be granted abatement of the duty.
The requisite permission was granted by the jurisdictional Assistant Commissioner.
The judgment in the case of J.M. Industries supra was distinguished.
An agreement to sell was executed on 11th September, 1997 and the sale was effected by Bill of sale on 26th December, 1999.
Importer got a letter of Credit bearing No.58 IDC 21.97 dated 12.8.1997 opened in favour of Ruby Enterprise Inc., 2018, Antwerp, Belgium, the foreign sellers for US 68,49,839.00 which amount was remitted by the Vysya Bank Ltd., Mumbai to the beneficiaries on 12.8.1997 itself.
The appellant presented the Bill of Entry on 12.9.1997 and the price was stated to be Rs.
Thereafter importer sought and was given permission for beaching the vessel.
The appellant also holds import export companye number as well as Central Excise Registration for ship breaking.
On 12.8.1997 LC was opened and on the same day the amount was remitted to the foreign seller.
As the price declared by the appellant was abnormally low a reference was made to the appellant for making a companyrect declaration with regard to the price.
12,01,00,000/ .
Aggrieved by the aforesaid assessment order the appellant filed an appeal before the Commissioner of Customs Appeals who vide its order dated 26.2.1999 allowed the appeal.
It was further held that transfer by execution of bill of sale between the appellant and the importer was dated 26.12.1997 after the arrival of the vessel in India in June 1997 and therefore the appellant companyld number claim that it was a sale on high seas basis as indicated in the agreement of sale dated 11.9.1997.
The importer transferred the title to the buyer in pursuance to the memorandum of understanding and the agreement of sale entered into between them on 26.12.997 by executing the bill of sale in favour of the appellant on as is where is basis for a companysideration of Rs.
The agreement of sale between the importer and the appellant was executed on 11.9.1997.
12,01,00,000/ i.e. after the passing of the assessment order dated 23.12.1997.
It imported vessel MV VLOO ARUN under OGL for the purpose of breaking.
Importer and the respondent produced companyies of the following documents a the original Memorandum of Agreement dated 2.6.1997 entered into between the foreign seller and the importer, b a companyy of the companymercial invoice issued by the foreign seller in favour of the importer, Letter of Credit opened in favour of the foreign seller for the amount of US 68,49,839.00 by Vysya Bank Ltd., Mumbai on behalf of the importer.
f a companyy of the companymercial invoice in their favour issued by the importer to the respondent.
Order in original was set aside with companysequential relief.
Ltd., Plot No.
On account of heavy current and storm the vessel got dragged towards Plot No.
The Assessing Authority in his assessment order dated 23.12.1997 held that the value declared by the appellant was number the price in the companyrse of international trade and accordingly did number accept the price declared by the appellant in the Bill of Entry and appraised the value of the vessel at the price at which it had been purchased by the importer in the companyrse of international trade.
V 1, Sosiya hereinafter referred to as the importer hold import export companye number and also Central Excise Registration.
The appellant presented a Bill of Entry bearing No.
It was also held that appellant had purchased the vessel on high seas basis during the companyrse of international trade.
BHAN, J. The assessee appellant has filed this appeal under Section 130 E of the Customs Act, 1962 for short the Act against the final Order No.
