TMI Blog2011 (6) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... n relation to the first set of 42 Bills of Entry and the excess amount of duty relating to the second set of 43 Bills of Entry is not tenable and the same is rejected. As regards the demurrage charges - Tribunal's Larger Bench in the case of Indian Oil Corporation vs Commissioner of Cus., Calcutta [2000 (11) TMI 164 - CEGAT, COURT NO. I, NEW DELHI], wherein it was held that demurrage was an extraordinary expenditure which did not require to be added to the transaction value inasmuch as Rule 9 of the Customs Valuation Rules did not contemplate inclusion of extraordinary expenses like demurrage in the assessable value of the goods - Held that: Assessable value shall not include demurrage charges - C/1104/07-Mum - A/281/2011-WZB/C-I(CSTB) - Dated:- 30-6-2011 - Mr P.G.Chacko, Mr. Sahab Singh, JJ. Appearance Shri T. Viswanathan, advocate for Appellant Shri A. K. Prasad, Jt.CDR for Respondent Per : P.G.Chacko M/s. Hindustan Petroleum Corporation Ltd. (HPCL for short) imported crude petroleum during April, 2005 to August, 2006 and cleared the goods on payment of duty provisionally assessed under Sec.18 of the Customs Act. In the Provisional Duty Bonds (PD Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs ordered final assessment based on invoice value (transaction value) and demanded differential duty of Rs. 43,27,64,592/- after adding the actual demurrage charges also to the invoice value to get the assessable value. Demand of differential duty of over Rs. 214.8 crores was dropped for various reasons. Obviously, the proposal to add barging/lighterage charges to the transaction value was dropped. 3. Aggrieved by the above finalization of provisional assessment, the assessee preferred an appeal before the Commissioner(Appeals) but the same came to be dismissed on merits. Hence the present appeal. 4. Upon examination of the records, we find that the grounds of appeal are limited. The main ground raised by the appellant is that 'excess payment' of Rs. 9.85 crores as duty on the excess quantity of crude oil based on shore tank measurement vis-a-vis invoice value was not taken into account by the lower authorities while quantifying the demand of differential duty. The ld.counsel has endeavoured to elaborate this ground by submitting that, where all the provisional assessments were taken up for joint finalization by the original authority, it was incum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, short- payment of duty is found, the differential amount of duty is to be paid by the assessee and where excess payment of duty is found, the differential amount of duty has to be claimed as refund. According to the JCDR, any adjustment of short -payment of duty on one Bill of Entry against excess payment of duty on another is not permissible. In support of this legal proposition, reference has been made to the Tribunal's Larger Bench decision in the case of Excel Rubber Ltd. vs Commissioner of Central Excise, Hyderabad [2011 (268) E.L.T. 419 (Tri-LB.)] ( para 24, 27, 28 50). Ld.JCDR has also relied on the decision in the case of Bombay Burmah Trading Corpn.Ltd vs Commr. of Central Excise, Pune.I [2010(261) E.L.T. 689 (Tri-Mumbai)]. Claiming support from the above decisions, ld.JCDR submits that, before asking for adjustment of short -payment of duty against excess payment of duty, the assessee should have filed proper claim for refund of the excess duty paid, under Sec.27 of the Customs Act. In the absence of such refund claim, the assessee cannot insist on adjustment between duty short- paid and duty paid in excess. It is contended that filing of refund claim und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rejoinder, ld.counsel submits that, though no formal refund claim was filed by HPCL, they did claim refund of the excess duty paid by them, through their reply to the show-cause notice. According to him, this claim should have been considered by the original authority. It is submitted that the refund claim was not considered by that authority and that the grievance raised against that authority was not heeded by the Commissioner(Appeals). Without prejudice to this submission, the ld.counsel also contends that the original authority ought to have suo motu granted the refund of the excess duty paid by HPCL, without insisting on filing of formal claim. 8. After considering the provisions of law and decisions cited before us, we are of the view that the issue at hand calls for a decision against the appellant in view of the Tribunal's Larger Bench decision in the case of Excel Rubber Ltd (supra). In the context of considering the question whether different clearances of excisable goods could be clubbed together for the purpose of finalization of provisional assessments, the Larger Bench held against the clubbing. It held that clubbing of excess payment of duty claimed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act. It is also noticed that there is no definite claim of refund even in the reply to the show-cause notice, nor is there any attempt to substantiate the claim. Obviously, the original authority was not called upon to examine any refund claim under Sec.27 of the Customs Act and, for that matter, it was not liable to consider the plea of adjustment between the amount of duty short- paid and the amount of duty paid in excess. 10. The Tribunal's decision in M/s. Apar Industries, case is contrary to the ratio of the decision of the Larger Bench in the case of Excel Rubber Ltd (supra) and hence cannot be followed as a precedent. Moreover, M/s. Apar Industries, decision (supra) is presently under challenge before the High Court. The reliance placed by the ld.counsel on Order-in-Appeal dated 29.7.2009 is also of no avail to the appellant inasmuch as the view taken therein by the ld. Commissioner (Appeals) by following the Tribunal's decision in M/s. Apar Industries's case does not hold good in view of the Tribunal's Larger Bench decision. The said Order-in-Appeal is also under challenge by the department before this Tribunal. 11. The present issue stands decided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een adopted by the original authority for quantification of differential duty. In this connection, he has referred to sl.no. 54 of the Annexure to the Order-in-Original, which indicates the invoice value of the goods covered by the above Bill of Entry as US$ 5,31,31,252. 41, which is said to be the price paid by BPCL to the supplier. We have also perused the relevant invoice raised by the foreign supplier on BPCL which indicates the same value. Though the relevant ground of this appeal does not survive today in view of the ld.counsel's submission that as the above Bill of Entry was filed by HPCL, the grievance raised by him needs to be addressed by the original authority as it is based on an error of quantification of duty. The subject-matter of grounds 3 4 of the appeal can also be examined by the original authority. 15. As regards the demurrage charges, the ld.counsel has submitted that there is a binding decision of the Tribunal's Larger Bench in the case of Indian Oil Corporation vs Commissioner of Cus., Calcutta [2000 (122) E.L.T. 615( Tribunal - LB)] (para 15). The Larger Bench held that demurrage was an extraordinary expenditure which did not require to be added to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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