This civil appeal under Section 130E of the Customs Act, 1962 for short the Act is directed against order dated 2nd February 2005, passed by the Customs, Excise and Service Tax Appellate Tribunal for short the Tribunal , whereby the appeal preferred by the appellant herein has been dismissed, companyfirming the levy of additional customs duty by virtue of the final assessment order passed by the Deputy Commissioner Customs , Bhavnagar on 28th August 2000.
Clause 15 companytained the description specifications of the vessel wherein the ballast tanks of the vessel were described as double bottom tanks, fore peak tank, AFT peak tank and wing tank.
Shorn of unnecessary details, the facts, material for the adjudication of the present appeal, may be stated as follows M S Chaudhary Ship Breakers, the appellant before us, imported an old vessel for demolition purpose under Memorandum of Agreement for short MOA dated 19th November 1997 with Standard Marine Trading Inc., New York on as is where is basis.
They have failed to produce any companyent reason for reduction in price from the MoA. Aggrieved by the said order, the appellant carried the matter in further appeal to the Tribunal.
The surveyors carried out inspection on 22nd November 1997, and submitted their report on 7th July 2000.
As per the said MOA, the total purchase price of the vessel was agreed at US 992887.20 at the rate of US 172 per long ton.
The vessel arrived at the Alang Anchorage on 21st November 1997.
Clause 25 gave seller the option to repudiate the agreement if there was any dispute in relation to the description of the vessel.
The addendum mentioned that the price reduction was due to the double skin.
As per Clause 12 B of the MOA, the buyer was given an option to seek proportionate reduction in purchase price if the vessel suffered any partial damage so as to affect the vessels LDT.
Accordingly, the ship breaker is bound to suffer additional illegible loss on this account.
The bill of entry was filed on 19th December 1997 at the reduced price of the vessel.
It seems that in light of the afore quoted observations by the surveyors, fresh negotiations took place between the seller and the appellant, which resulted in a fresh agreement in the form of an addendum dated 8th December 1997 to the original MOA.
The Light Displacement Tonnage LDT of the vessel was shown at 5772.6 LDT.
In the present case as discussed above, the price was revised after import and in the absence of any provisions regarding price variation in the memorandum of agreement, we find numbermerit in the appeal.
In the said addendum, the price of the vessel was reduced to US 929388.60.
Further, Clause 16 provided that any dispute relating to the interpretation of the said MOA would be referred to arbitration.
Ltd.1 and Commissioner of Customs, Ahemdabad Vs.
Hence, the present civil appeal by the importer.
The Survey Reports of M s. Erison Richards dated 22.1.97 does number mention anything about the discrepancy claimed by the appellant I rely on the observation of the Tribunal in the case of Atam Manohar supra and hold that the appellant has number produced any evidence to show that the vessel was number the same as was offered to them vide MoA dated 19.11.97.
