ORDER
Jyoti Balasimdaram, Member (J)
1. The application for waiver of pre deposit of duty of Rs. 73,672/- arises out of the order of the Commissioner (Appeals). The duty liability arises as a result of assessing fuel and oil under appropriate headings of the
Customs Tariff while it is the contention of the applicants that since the fuel and oil are contained in the vessel and machinery they are to be regarded as integral part of the vessel and hence to be classified under Chpater Heading 89.08 as decided by WCO in its opinion and as held by the Tribunal in several orders including that in the case of Ghaziabad Ship Breakers v. CC 2003 (151) ELT 636. He therefore prays pre deposit requirement may be waived pending appeal.
2. The prayer is opposed by the Ld. DR who points out that the applicant did not produce any material to show the location of the fuel and oil on which duty demand has been confirmed in the vessel. Further he submits
that the Masters report now produced (and stated to have been produced before the lower appellate authority) only shows the quantity of fuel and oil and does not show what is the quantity in the engine room tank in order that the ratio of the Tribunal’s decision in Gaziabad Ship Breakers could be applied. He also draws our attention to paragraph 11 of the adjudicating order wherein the Asst. Commissioner has found that the quantities declared by the master of the vessel were too big to be contained in the vessels machinery and engine and on which basis it was held they have to be classified under appropriate heading and differential duty to be paid thereon.
3. We have carefully considered the rival submissions. The applicant has not made out a strong case prima facie for waiver of pre deposit. We have perused the engine department report given by the Master of the vessel. We are of the view that the location of the fuel and oil is not brought out from such report and therefore applicants are not correct in stating the material in the form of this report shows that the freight and oil were contained in the engine room tank and should thus be assessed as integral part of vessel.
4. In this view of the matter we direct applicants to deposit the duty amount within 8 weeks from today and report compliance on 2.3.2004.
Failure to comply with this direction shall result in dismissal of the appeal without prior notice.
(Dictated in Court)
