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2017 (7) TMI 673 - AT - CustomsValuation - imported bulk liquid edible oil - finalisation of provisional assessment - Revenue is aggrieved by the assessment based on shore tank quantity and not on shore ullage quantity - Held that: - It is noted that Commissioner(Appeals) in the impugned order has admitted that shore tank quantity should have been adopted, however, as no shore tank quantity was available, Bills of Entry were finalised as per old procedure i.e. shore ullage quantity - the shore tank quantity should have been the basis for arriving at assessable value and the customs duty liability on the imported goods - appeal allowed. Valuation - imported Soyabean oil in bulk - The grievance of the appellants herein is that dip reading should have been taken only after 48 hours, after the liquid is get stabilised. Since the reading has been taken within 48 hours, there is a difference in total quantity because of turbulence and foam - Held that: - Circular No.96/2002-Cus issued by the CBEC, while advising assessment of such bulk quantity cargo to be done on the basis of shore tank receipt, does not however give any guidelines as to the time, manner and method of such measurement of the quantity in shore tank quantity. However, the very same Public Notice No.2/2002 relied upon by lower appellate authority, in para 8, thereof lays down that the dip and temperature of the cargo in shore tank shall be taken “after cargo is settled - the percentage difference on account of such disputed measurements ranges between 0.003% to 0.26% only, which in our view is not very substantial. Such minor percentage differences can very well be attributed due to the presence of foam and added turbulence, proximate to discharge of the bulk edible oil cargo to the shore tank. Hence both on the manner and method of taking the dip measurement as also taking account the relatively low alleged difference in quantity, we find in favor of the importer - appeal allowed. Valuation - edible oil discharged directly into the refinery tank of the appellants - Held that: - where bulk edible oil cargo is warehoused and discharged directly into the shore tank, the aforesaid Board circular provides and facilitates for the shore tank measurement to be taken and adopted for the purposes of finalisation of assessment, instead of ship ullage quantity. But where the importer chooses to get such cargo directly pumped into their own tanks in the refinery and file Bill of Entry for clearance for home consumption, it would not be practical for customs officers to have the dip measurement of the quantity received in refinery in their presence for the purposes of arriving at actually received quantity. It is for this reason only that the CBEC in its wisdom has advised that in such cases, only the ship ullage quantity will continue to be adopted as the quantity imported for the purposes of assessment. In consequence, we fail to find any merit in these appeals - appeal dismissed. Condonation of delay in filing appeal - Section 128(1) of the Customs Act, 1962 - Held that: - As per the proviso to that sub-section, the Commissioner(Appeals), if he satisfied that the appellant was prevented by sufficient cause in presenting the appeal within such period of 60 days to allow it to be presented within a further period of 30 days. Thus the appeal before the Commissioner(Appeals) cannot be filed beyond the limitation period of 90 days - there is no provision whatsoever in the Customs Act, 1962 for further relaxation of the period allowed for filing appeal under Section 128 ibid - COD application dismissed. Appeal allowed - decided partly in favor of appellant.
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