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2017 (10) TMI 221 - AT - CustomsQuantification of imported Crude Palm Oil in bulk - whether the difference between assessed quantity of bulk Crude palm oil as quantified at the time of import and the actual quantity utilised as worked out from the appellant’s own records, and whether these shortfalls can be considered as quantities not utilised “for use” as intended by notification? Held that: - there is no allegation supported by evidence either in the show cause notices or in the orders of lower authorities, that the quantities as found short as per the records of the appellant, have actually been diverted or clandestinely or removed for sale or otherwise disposed of, without discharge of custom duty liability thereof. When department alleges that part of the imported quantity has not been “used for intended purpose”, some evidence will have to be put forth to prove that they have used such quantity for any other purpose, contrary to conditionalties laid down in the exemption notification, or have illegally disposed of such quantity. This is sine qua non. Assumptions and presumptions cannot take place of evidence. Higher appellate fora have consistently reiterated the view that importer/actual user cannot be called upon to pay duty on negligible percentages of storage or transit loss etc. Appeal allowed - decided in favor of appellant.
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