TMI Blog2009 (2) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other oils in bulk and filed 13 bills of entry for clearance of the same. The ullage quantity being more than the quantity shown in the bill of lading, duty was paid on the ullage quantity. Subsequently, out turn (shore tank) reports showed that the oil received in the each case was less than the quantity in the respective ullage report, on which duty was initially paid. It is seen that a circular was issued by the Board being Circular No. 96/2002-Cus., dated 27-2-2002 clarifying that in case of bulk liquid imports, the shore tank received quantity should be taken as basis for levy of custom duty and the provisional assessment should be finalized accordingly. On the basis of the above, appellants filed refund claims for the excess duty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to claim on merits. The only objection by the Revenue is that, the final assessment order has not been challenged. For the said disputed issue, the findings arrived at by Commissioner (Appeals) are relevant, which we are reproducing. 5. I have carefully considered the facts of the case, the grounds of appeal and the submissions made by the respondent. The impugned order was passed on 04-6-2004. The Commissioner of Customs (Preventive), Jamnagar, directed, in exercise of the provision in sub section 129D(2), the Adjudicating Authority to apply to the Commissioner (Appeals), on 27-4-2005, that is, within one year from the date of the impugned order. Also, the appeals were filed by the lower authority, on behalf of the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the appeal papers, was a copy of bill of entry endorsing final assessment was not available with the lower authority. In fact what was submitted, along with the appeal papers, was a copy of bill of entry with the following endorsement. (emphasis supplied) As per record this b/e has been finally assessed on 22-4-2004 Under these circumstances it is difficult to hold that the importer / respondent could have challenged the so called final assessments. As is seen the refund claims sanctioned by the original adjudicating authority have been set aside on the technical ground of non filing of appeal against the assessment order, even after observing that such assessment orders were never communicated to the assessee. In identical fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that duty should be paid only on the basis of the shore tank quantity in terms of the various decisions and board s instruction and therefore, they filed refund claim. But, the refund papers filed by the respondents were returned by the department. Therefore, it cannot be said that the respondent did not challenge the assessment. In fact no action was taken on the refund claim and assessment was finalized based on the ship ullage. In view of this, the Revenue s grounds of appeal do not have any merit. The Commissioner (Appeals) has relied on various judicial decisions and also Board s circular which was based on the Apex Court s decision in the case of NOCIL India Ltd. in Civil Appeal No. 6764/1999 [2002 (142) E.L.T. A280 (S.C.)] which has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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