COMMISSIONER OF CUSTOMS, JAMNAGAR, GUJARAT v. RAI METAL WORKS LIMITED
2010-10-07
H.L.DATTU, O.K.JAIN
body2010
DigiLaw.ai
The Order of the Court was delivered by D.K. JAIN, J.- The common issue that arises for consideration in these civil appeals under Section 130-E(b) of the Customs Act, 1962 (for short "the Act") relates to the determination of transaction value of ships/vessel, imported by each of the respondents on "as-is-where-is" basis, under Section 14 of the Act for the purpose of levy of customs duty under the Customs Tariff Act, 1975. 2. In all these appeals, the respondent importers had imported ships for breaking purposes under respective memorandums of agreements (MoA) on a lump sum price. However, subsequently addendums were entered into between the sellers of the ship and the importers reducing the negotiated price on account of certain shortcomings and missing parts. The short controversy is whether or not the reduced price mentioned in the addendum has any bearing on the determination of the value of the ship for the aforestated purpose. 3. To appreciate the rival stands, it would be expedient to state the facts in Civil Appeal No.147 of 2004 as illustrative, with brief reference to the material details in each of the other appeals, in the latter part of this order. 4. The importer viz. M/s Rai Metal Works imported an old vessel under an MoA dated 27-1-1999 with M/s Sea Crest Shipping Inc. As per the MoA, the purchase price of the said vessel was agreed upon at US $509,190.50 at the rate of US $108.50 per long ton and the light displacement tonnage (LDT) of the vessel was represented at 4693 long tons. As per Clause 1 of the MoA, the vessel was to be delivered "at the outer anchorage with available outfit, equipment anchors and chains in safely afloat condition, free of charter, free of cargo on the basis of delivery under own power". The said clause provided for price adjustment only in' case of difference between actual LDT and agreed LDT. Clause 7 of the MoA provided that the seller makes no representations or warranties of any kind, except for what was provided in Clauses 11 and 19 of the agreement. Clause 19 provided the description of the vessel, and noted the power of the main generator at 450 kW. Clause 11 stipulated the period of notice to the importer on the vessel entering the outer anchorage at Alang (Gujarat). 5.
Clause 19 provided the description of the vessel, and noted the power of the main generator at 450 kW. Clause 11 stipulated the period of notice to the importer on the vessel entering the outer anchorage at Alang (Gujarat). 5. On 10-2-1999, an addendum to the MoA was entered into between the a seller and the importer to substitute the words kWA with kVA in the description of the generator in Clause 19 of the MoA as also to read the words as "under tow" for the words "under own power". By virtue of the said addendum, the price of the vessel was reduced to US $488,072 i.e. US $104 per long ton. 6. The vessel arrived at the Alang anchorage on 15-2-1999. The survey b report was submitted on 16-2-1999, and it stated that the said vessel arrived under tow. The bill of entry was filed on 19-2-1999, wherein the importer disclosed the reduced price of the vessel as per the addendum. In the said bill of entry, the reason for reduction of price was shown as "major discrepancy found in the generator of captioned vessel was not in working condition". 7. A provisional assessment was. made on 19-2-2000 at the reduced price c mentioned in the addendum, and differential duty of Rs 2,87,441 was levied. The final assessment order was passed by the Deputy Commissioner, Customs Division, Bhavnagar on 17-4-2001, at the original transaction value of the vessel at US $509,190.50, confirming the differential duty of Rs 2,87,441. 8. The appeal filed by the importer against the said order of the Deputy ( Commissioner was allowed by the Commissioner (Appeals) on 28-8-2001, and the reduced price of the vessel was accepted on the ground that the price actually paid by the importer was to be considered as transaction value for the purpose of assessment. 9. Aggrieved by the said order, the Revenue preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal (for short "the I Tribunal"). On 14-10-2002, the Tribunal rejected the appeal filed by the Revenue. Similar orders were passed by the Tribunal in other cases, a summary whereof is given below: 10. Hence the present appeals by the Revenue. 11. In our view, the issue before us in these appeals is no more res integra. In Commr.
On 14-10-2002, the Tribunal rejected the appeal filed by the Revenue. Similar orders were passed by the Tribunal in other cases, a summary whereof is given below: 10. Hence the present appeals by the Revenue. 11. In our view, the issue before us in these appeals is no more res integra. In Commr. of Customs v. Atam Manohar Ship Breakers Ltd., this Court, dealing with a similar situation, had expressed the view that in cases where the price of the vessel has been reduced by an addendum to the original agreement, the acceptance of the price must turn on the genuineness of the addendum, and such addendum which appears to be self-serving documents cannot be given effect to. 12. In all the appeals before us, the importer had adduced cogent reasons for the reduction in price which had not been rebutted by the Revenue as self-serving evidence. As a matter of fact, the Tribunal while holding that difference in price was justified, has observed that there is no dispute that what had been imported was different from what had been agreed to be imported and there was no provision in the agreement to take note of this material difference. Similar observations appear in other cases as well. Thus, the genuineness of the addendum having not been questioned by the Revenue, the price of the vessel had to be taken as reflected in the addendum. 13. Having considered the appeals in the light of the undisputed questions of fact, we are of the opinion that no fault can be found with the impugned orders of the Tribunal. 14. Consequently, all the appeals, being devoid of any merit, deserve dismissal and we order accordingly with no order as to costs.