Apollo Vikas Steel (P) Ltd. Vs. Commissioner of Customs and - Court Judgment

Excerpt:
1. a vessel m.v. some of 7160.127ldt(light displacement tonnage) was assessed to duty under 89.09 as it was brought for breaking. the relevant rules for duty under notification applicable was no. 87/90 cus dated 20.3.1990 were on ldt basis.2. the appellant had filed taking 7160.127 ldt as per ship survey report duty of rs. 92,75,625 was assessed being duty 1232.230 ldt said to be permanent ballast. on 2.4.1992, superintendent informed about the direction of collector of customs & central excise, rajkot who had ordered the charging of duty on the said permanent ballast in mv some & the bank guarantee was encashed.3. in appeal, against the said decision, tribunal on 23.7.1998 ordered the appeal to be filed before commissioner (appeal) with application for condonation of delay. the commissioner (appeal) disposed off the appeal by dismissing as not maintainable expressing doubts as under the statute he had no power to condone the delay of more than 3 months, hence this appeal.4. ballast temporary or permanent cannot be considered to reckon ldt.the ldt means ldt is mts as per builders registered ldt in the stability book. that was the decision in the case of jalan udyog (2000 (115) elt 725 (trib); the civil appeal no. 2675 of 2000 filed by commissioner against the order has been dismissed by the supreme court 2000( 143) elt a 81 after observing that "the judgment & orders under challenge passed by the tribunal, is based on expert opinion on records. if relates to technical issues, no interference by this court is called for. the civil appeal is denied. no. order as to cash demand." therefore, the advise of the commissioner directing to the contrary and recovery of duty on permanent ballast in this case cannot hold.5. on perusal of the tribunal order e/118/98b/1998 dated 23.7.98, it would appear the order in paragraph 5 reads as under - " 5. we find that the appeal before us is not maintainable. the appellants are at liberty to file an appeal before the collector (appeals) against the order / communication by the superintendent. if the appeal is filed along with the condonation of delay, the collector (appeals) in directed to condone the delay pertaining to the period when the appeal was paving before the tribunal".the observations of the commissioner on condonation are not called for; he was required to eclipse the delay for the period the matter was pending with tribunal and then count his period. as also, it is well settled there an appeal against the direction / order of superintendent given by a letter an appeal would be to cce (appeals).6. therefore, the order of commissioner is set aside and he should hear the appellant, not only on the letter but also on other issues to be raised before him and thereafter pass an order. appeal disposed in above terms.

Judgment:
1. A vessel M.V. Some of 7160.127LDT(Light Displacement Tonnage) was assessed to duty under 89.09 as it was brought for breaking. The relevant rules for duty under notification applicable was No. 87/90 CUS dated 20.3.1990 were on LDT basis.

2. The appellant had filed taking 7160.127 LDT as per Ship Survey Report Duty of Rs. 92,75,625 was assessed being duty 1232.230 LDT said to be permanent ballast. On 2.4.1992, Superintendent informed about the direction of Collector of Customs & Central Excise, Rajkot who had ordered the charging of duty on the said permanent ballast in MV Some & the Bank Guarantee was encashed.

3. In appeal, against the said decision, Tribunal on 23.7.1998 ordered the appeal to be filed before Commissioner (Appeal) with application for condonation of delay. The Commissioner (Appeal) disposed off the appeal by dismissing as not maintainable expressing doubts as under the statute he had no power to condone the delay of more than 3 months, Hence this appeal.

4. Ballast Temporary or Permanent cannot be considered to reckon LDT.The LDT means LDT is MTs as per builders registered LDT in the stability book. That was the decision in the case of Jalan Udyog (2000 (115) ELT 725 (Trib); the Civil Appeal No. 2675 of 2000 filed by Commissioner against the order has been dismissed by the Supreme Court 2000( 143) ELT A 81 after observing that "The judgment & orders under challenge passed by the Tribunal, is based on expert opinion on records. If relates to technical issues, no interference by this court is called for. The civil appeal is denied. No. order as to cash demand." Therefore, the advise of the Commissioner directing to the contrary and recovery of duty on Permanent Ballast in this case cannot hold.5. On perusal of the Tribunal Order E/118/98B/1998 dated 23.7.98, it would appear the order in paragraph 5 reads as under - " 5. We find that the appeal before us is not maintainable. The appellants are at liberty to file an appeal before the Collector (Appeals) against the order / Communication by the Superintendent.

If the appeal is filed along with the condonation of delay, the Collector (Appeals) in directed to condone the delay pertaining to the period when the appeal was paving before the Tribunal".

The observations of the Commissioner on condonation are not called for; he was required to eclipse the delay for the period the matter was pending with Tribunal and then count his period. As also, it is well settled there an appeal against the direction / order of Superintendent given by a letter an appeal would be to CCE (Appeals).

6. Therefore, the order of Commissioner is set aside and he should hear the appellant, not only on the letter but also on other issues to be raised before him and thereafter pass an order. Appeal disposed in above terms.