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2011 (6) TMI 518 - AT - CustomsProvisional assessment - show-cause notice dated 19.10.2006, the Deputy Commissioner concerned called upon HPCL to show cause why the provisional assessment should not be finalized on the basis of transaction value inclusive of lighterage/barging charges and demurrage charges - The main ground raised by the appellant is that 'excess payment' of ₹ 9.85 crores as duty on the excess quantity of crude oil based on shore tank measurement vis-a-vis invoice value was not taken into account by the lower authorities while quantifying the demand of differential duty - clubbing of excess payment of duty claimed as refund on the one hand and demand of differential duty by the department on the other, by adopting the method of 'adjustment,' would certainly result in nullifying the provisions of Rule 7(4) of the Central Excise Rules, 2002 - Decided against the assessee. Adjustment of short and excess payment - held that:- claim for adjustment between the differential amount of duty demanded by the lower authorities in relation to the first set of 42 Bills of Entry and the excess amount of duty relating to the second set of 43 Bills of Entry is not tenable and the same is rejected. As regards the demurrage charges - Tribunal's Larger Bench in the case of Indian Oil Corporation vs Commissioner of Cus., Calcutta [2000 (11) TMI 164 - CEGAT, COURT NO. I, NEW DELHI], wherein it was held that demurrage was an extraordinary expenditure which did not require to be added to the transaction value inasmuch as Rule 9 of the Customs Valuation Rules did not contemplate inclusion of extraordinary expenses like demurrage in the assessable value of the goods - Held that: Assessable value shall not include demurrage charges
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