2004 (172) E.L.T.489 (Tri.-Mumbai)

IN THE CESTAT,WEST ZONAL BENCH,MUMBAI

Ms. Jyoti Balasundaram, Member (J)and Shri Moheb Ali M.,Member (T)

EXPORT TRADE CORPORATION LTD,

Versus

COMMISSIONER OF CUS.,AHMEDABAD

Order Nos. A/855-2004-WZB/C-I, dated 25-5-2004 in Appeal Nos. C/343-345 & 394/2002-Mum.

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Heard both sides

The less said about the order of the Commissioner- the better. Firstly the test report says that what was found on board does not conform to furnace oil and was highly contaminated. As admitted by everyone concerned, the furnace oil on board was left over cargo which could not be discharged. It is also a fact that it was declared as ship store, instead of left over cargo in the manifest filed by the master. When these facts were known to the department the best course of action would have been to consider them while assessing duty on the ship when a Bill of Entry for breaking the ship was filed. The facts in this case reveal that no such Bill of Entry was filed at Bedi. At that point of time what was known was that the vessel would be broken up in India. But until a Bill of Entry was filed for assessment, no assessment could take place. The impugned order nowhere indicates that a Bill of Entry was filed. When the entire vessel was supposed to be cargo intended for import, a manifest indicating that fact has to be filed and thereafter a Bill of Entry is filed seeking assessment of the vessel. Merely because the master filed a manifest indicating the furnace oil on board as ship stores the vessel does not become liable to confiscation under Section 111 (f) of the Customs Act . The impugned order does not also indicate how Section 111 (n) is attracted in this case. We do not understand how the vessel was liable to confiscation merely because the left over cargo was declared as ship stores. The furnace oil in any case was found to be no furnace oil at all. The Commissioner in his long and winding order signifying next to nothing, observed that the intention of declaring left over cargo as ship stores was to dip press the value of the vessel and thereby evade duty at the time of breaking. The Commissioner was acting as if he was trying to prevent a major fraud that would have occurred in future. In this case Sections 111 (f) and (n) are not attracted. The vessel is not liable to confiscation along with the furnace oil. No penalties therefore can be imposed on the appellants. The order of the Commissioner is set aside and the appeals are allowed.