TMI Blog1990 (3) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in appeal No. C/2525/88-A all the relevant papers are there and the facts in all other appeals being the same, documents in this folder may be referred to. He then submitted that the point involved in these appeals is whether landing charges for the purpose of calculating the assessable value of imported goods for levy of customs duty should be separately added when the freight paid by the importers included landing charges also and such charges if they had to be paid should have been paid by the shippers who carried the goods. Another point raised by Shri Ganesh was that the Customs not having given a notice for inclusion of wharfage charges in the assessable value and the Collector (Appeals) having given a clear finding that wharfa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alculate only the amount of landing charges in the assessable value and not wharfage charges and no proceedings to include the wharfage were ever initiated. He submitted that the Collector (Appeals) gave a clear finding on the issue of wharfage charges in favour of the appellants and, therefore, the Department should not now be allowed to seek the inclusion of the wharfage charges in the assessable value. (iii) the third proposition made by the learned Advocate was that the landing charges were already included in the freight paid by the appellants to the shippers and no additional charges were paid to the shipping company, Port Trust or any others. The appellants did not incur any expense for landing and it is not the case of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms or the Tribunal to show that freight paid by them included landing charges. 6. Shri Naik accepted that the question of including wharfage charges as distinct from landing charges cannot be agitated now as it was not the case of the Customs at any stage. Reiterating that landing charges worked out on the percentage of the value should be added to the assessable value, Shri Naik relied, especially, on a judgment of the Gujarat High Court in Prabhat Cotton and Silk Mills Ltd. v. Union of India reported in 1982 E.L.T. 203 Gujarat. He cited two other judgments with the same ratio. 7. In his rejoinder Shri Ganesh submitted that in the decisions cited by the learned Jt. CDR the question of twice charging customs duty on landing charges w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement with the shipping company may be for payment of freight including landing charges (and once again landing charges are added to the value) and in other cases the agreement may be for freight without landing charges in which case the amount of landing charges is added only once. 9. We have considered the submissions of both sides. Inasmuch as the Customs at no stage threatened addition of wharfage charges to assessable value it appears to us that the ground pertaining to the same is totally redundant. We have taken note of the annexure to the refund claim and shall be commenting on it in another part of the order. But the result is that the only point to be decided by us is whether the appellants are liable to pay customs dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the appellants say that the Port Trust have charged only an amount of Rs. 81.11 towards landing charges as per copy of receipt of Bombay Port Trust enclosed ). It appears that the appellants were trying to tell the Customs that landing charges are nothing but wharfage charges. More important is that they were calling wharfage by the name of landing charges as can be seen from the enclosure. A receipt placed before us shows that it was wharfage and demurrage charges which were paid by the appellants and received by the Port Trust and not landing charges. Therefore, it appears that on the one hand the appellants case before the Assistant Collector was entirely different and on the other hand the appellants themselves did not say that lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposes any landing charges upon goods imported . However, when specifically asked by the Bench, whether they could substantiate this statement, the appellants could not do so. Therefore, the appellants case has to fail for want of evidence. 12. We gave careful thought to Shri Ganesh s submissions that it was upto the Customs to show that freight did not include landing charges. A principle advanced by Shri Ganesh himself, namely that a negative need not be proved and cannot be proved applies equally to this situation also and more justly because, CIF value includes freight and freight only and not landing charges. Further, when the appellants sought relief, it was upto them to prove their claim; Customs need not go fishing for evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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