TMI Blog2000 (7) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... case before us the quantity of oil declared on the bill of entry by the importer and assessed provisionally pending ullage survey was 64000 MT. The ullage survey carried out in the presence of the carrier, the customs and port trust officials showed the quantity to be 65107.552 MT. Duty on the difference between the two quantities was demanded from the importer. In the reply to the notice, the importer contended that a more correct method of determining the quantity of goods imported would be dip measurement in the tanks on shore into which the oil is pumped from the tanker and by this measurement there is no excess goods imported. The Asstt. Commissioner declined to accept this plea and confirm the demand. 2. The importer appealed to C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other than cost during discharge and unloading operation arising in the ordinary course. 4. The challenge to this finding by the department will now have to be considered. The grounds in the appeal are that, by applying the definition of "import" as in section (2) 23 of the Act, its the quantity of the oil contained in the ship as determined by the ullage survey, which has been imported. This is the quantity that has been brought into the country and hence imported and the quantity liable to duty. The Custom House had issued a Public Notice No. 49/92 prescribing a uniform procedure in all ports for following the ullage measurement based upon the guidelines issued by the Bombay High Court in Shaw Wallace Co. Ltd. v. CC, 1986 (25) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be fulfilled before the goods can be brought inside the customs barrier i.e. before they form part of the mass of goods within the country 18. It would appear to us that the import of goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of the mass of the goods within the country, the taxable event being reached at the time when the goods reach the customs barriers and the bill of entry for home consumption is filed. In Kiran Spinning Mills v. CC it said It has now been held by this Court in Hyderabad Inds. Ltd Anr. v. Union of India and Ors. [1999 (108) E.L.T. 321, JT 1999 (4) SC 95] that for the purpose of levy of additional duty section 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. India includes the territorial waters thereof. Therefore, accepting the department s logic would result in a situation in which the act of import is complete as soon as the ship or aircraft carrying the imported goods enters the territorial waters. This was in fact, the view that has been rejected by the Supreme Court in Garden Silk Mills, paragraph 18 of which judgment we have already reproduced above. Reliance is next upon the Public Notice No. 49/92 issued by the Commissioner of Customs, Mumbai. It claimed that this Public Notice was issued to give effect to judgment of the Bombay High Court. This judgment of the High Court is in Shaw Wallace Co. Ltd. v. CC, 1986 (25) E.L.T. 948. The judgment of the High Court in fact did not set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice No. 131 of 17-9-1997 of the Mumbai Custom House. By this amendment, paragraph 11A has been added to the public notice which reads as follows : The oil companies shall take the shore tank dip measurement in the presence of PO and give a copy of the same to the PO, who will pass on this document to the Appraising officer/oil unit for enabling him carry out the assessment and determine the duty liability. The importer shall submit a bank attested invoice or certified copy thereof for purpose of assessment. In order to ascertain the actual freight paid to the shipping company, the importer shall submit the copy of the charter party agreement in addition to the documents which are being submitted at present. 10. This paragraph in effe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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