TMI Blog1987 (10) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the delay. 4. After hearing both sides, we have allowed the Misc. Application of the Department for placing on record certain additional documents also. 5. Coming to the appeals, the facts, in brief, are that the respondents are manufacturers of fertilizers. For such manufacture, they imported rock phosphate and sulphur in bulk from abroad. The goods came to India in chartered ships arranged by M/s. MMTC, the public sector canalising agency. The respondents purchased shiploads of the goods from M/s. MMTC on the high seas. According to the agreement, unloading of the ship on the Indian coast was the responsibility of the respondents. The respondents did not employ outside contractors or stevedores for such unloading. In order to maintain the efficiency of their plant with continuous and timely supply of raw materials, they maintained their own wharf, unloading equipment and staff at Visakhapatnam. The common point of dispute in these appeals is whether stevedoring charges incurred for landing the goods on the Indian shores should be included in the assessable value of the imported goods for assessment of customs duty and, if so, to what extent. 6. The period of controversy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 131(5) of the Customs Act, 1962. When it was put to the respondents that the matter was one of erroneous refund to which the limitation of Section 131(5) did not apply, vide 1983 E.L.T. - 1596 (S.C.) - Geep Flash light Industries Ltd. and 1979 (4) E.L.T. - J 81 (Kerala), the respondents accepted that the facts of their case were similar to those of Geep Flashlights and in view of the Supreme Court judgment being against them, they did not press the point of limitation further. They added, however, that they were not dropping the point finally so that, if necessary, they may be able to take it before the Supreme Court. 8. On merits, the respondents first proposition is that no stevedoring charges were addable at all because the respondents had not paid any stevedoring charges to anyone. Their second proposition is that, as held by the Bombay High Court in 1987 (30) E.L.T. 126 (Bom.) = 1977 BLR 380 - Sylvania and Laxman Ltd.; the importation was complete as soon as the importing vessel entered the territorial waters of India, and as such, no charges incurred thereafter could be included in the assessable value for assessment of customs duty. However, the respondents stated ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point as the respondents themselves did not seriously press for the contrary view before us. 10. The respondents proposition that stevedoring charges or charges for landing the goods on the land mass of India should not be included because they do not pay such charges to anybody is not acceptable. They do incur considerable costs on maintaining their wharf, unloading machinery and on employing the necessary labour force. It is not as if their goods leave the ship and reach the shores of India for the free. Whether the importer employs an outside contractor for doing the unloading work on payment or he does the unloading work himself, unloading costs are incurred in both cases and such costs for placing the goods on the Indian soil have to be added to arrive at the value of the imported goods under Section 14. The respondents made a statement that their two competitors, namely, M/s. Madras Fertilizers and M/s. IFFCO, were not adding the unloading costs in the value of their imported materials. We are not aware of the full facts of the cases of these two companies. In any case, any decision taken to the contrary by any lower authority is not binding on this Tribunal. 11. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prised wharfage charges and conveying charges from wharf to transit sheds and not unloading charges from ship to berth. The unloading charges have, therefore, to be computed and added too. 13. As already stated, the real point of dispute before us lay in determining as to which of the elements should constitute stevedoring charges or ship to berth charges. Both sides stated before us that no comparative costs of unloading bulk cargo at Vizag Port were available since no one other than the respondents was doing this work. We have, therefore, no alternative but to compute the unloading costs on the basis of the respondents own expenses. In Paragraph 6 above, we have already listed the elements of costs held by the Asstt. Collector to be includible. During arguments before us, it was common ground by both sides that overtime allowance paid to the customs staff should not be an includible element as already held by this Tribunal in earlier cases. We agree that customs OTA payments, being exceptional costs incurred by only some importers under special circumstances, are not to be added. They are not an item of normal or regular expenditure. For the rest, the respondents contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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