TMI Blog2014 (4) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... go should be based on the determination of quantity for levy of customs duty - The European Countries are also following the valuation system based on GATT - Assessable value in the present imports was correctly determined on the basis of quantity of LNG discharged in India at the contracted price arrived at on the basis of an agreement - Accordingly, appeal filed by the Revenue is rejected – Decided against Revenue. - Appeal No. : C/14004/2013-DB - ORDER No.A/10473/2014 - Dated:- 27-3-2014 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri Alok Srivastava (AR) For the Respondent: Shri J.C. Patel (Advocate) and Shri Vishal Agarwal (Advocate) JUDGEMENT Per : Mr. H.K. Thakur This appeal has been filed by the Revenue against the Order-in-Appeal No.380 to 390/2013/Cus/Commr(A)/AHD dt. 10.9.2013 passed by Commissioner (Appeals), Ahmedabad. Under this OIA dt. 10.9.2013, the first appellate authority has held that final assessment of LNG of CTH 27111100 imported by the Respondent should be made on the basis of transaction value worked out as per the contracts on the basis of ex-ship delivered quantity and unit price declared in the final inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Circular No.96/2002-Cus. dt. 27.12.2002 (F.No.494/12A/2005- Cus.VI] 3.1 Learned Advocate also relied upon the following case laws to drive home the point that in the case fluid hydrocarbons, the quantity delivery should be the basis for assessment of the transaction value agreed between the buyer and the seller :- i) Mangalore Refinery Petrochem. Ltd. Vs CC Mangalore [2006 (205) ELT 753 (Tri.-Bang.)] (ii) CC Mumbai Vs Hindustan Petroleum Corporation Ltd. [2000 (121) ELT 109 (Tribunal)] (iii) CC Visakhapatnam Vs Hindustan Petroleum Corporation [2001 (130) ELT 139 (Tri.-Del.)] (iv) Binani Zinc Vs CC Cochin [2001 (135) ELT 563 (Tri.-Chennai)] (v) Binani Cement Ltd. Vs CC Ahmedabad 2004 (165) ELT 533 (Tri.-Del.) (vi) CC Gujarat Vs Rai Metal Works Ltd. [2010 (259) ELT 488 (SC)] (vii) Eicher Tractors Ltd. Vs CC Mumbai 2000 (122) ELT 321 (SC) 4. Heard both sides and perused the case records. In this case, the case of the Revenue is that duty should be paid on the quantity lifted at the load port and not with respect to the quantity discharged at the Indian port. In this regard, clauses 7 16 of the Master (Ex-Ship) LNG Sale and Purchase agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall become due and payable seven (7) days following receipt of such invoice. In all cases, if an amount falls due for payment on a day that is not a Banking Day, then such amount shall be due on the immediately preceding Banking Day. For the purpose of this Clause 16.5 Banking Day means a day on which the bank of the paying party is open for the transaction of normal banking business. Similarly clause (12) of the confirmation notice between the above two contractor parties is relevant and is reproduced below : 12) Contract Price For the purposes of Clause 7 of the MSA the price in US Dollars/MMBtu shall be : 0.1119 x Brent With respect to the Calculation Period (as defined below), Brent shall be the mean of the official settlement prices of the Inter Continental Exchange (ICE) London, in US$ per barrel, for Brent Crude oil for all days in the Seller Nominated Month upon which the ICE is open for business (the Calculation Period ). The settlement prices used shall be those quoted on ICE. 5. From the above contracts between the buyer and seller, the transaction value has to be calculated on the basis of the quantity of LNG discharged and Brent rate. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He made the point that the issue is already decided by this Tribunal in the appallants own case [2002 (141) E.L.T. 247 (Tri. - Bang) in the Final Order dated 1-1-2002. In the said order, the Tribunal has decided that the actual quantity removed from the shore tanker receipted quantities, should be only reckoned for the purposes of assessment of duty of crude oil removed from such bonded shore tanks (sic). We do not agree that the above decision of the Tribunal has decided the issue which has arisen in this case. In fact, the issue decided by the Tribunal is whether the customs duty on crude oil inputs is assessable on the quantity determined on the basis of ships ullage survey report or on the basis of quantity as per shore tank receipt . The above issue is very relevant only when the duty is specific. In our view the above decision is not relevant in the present case. Even the learned Counsel for Revenue has not disputed the fact that the quantity received in the shore tank is the quantity imported and when the duty is at specific rate, the same has to be calculated on the basis of the quantity of the crude received in the shore tank. In fact, the CBEC issued Circular N. 96/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not received, the learned Advocate has referred to Section 13 Section 23. We want to make it clear that it is not the question of demanding duty on goods not received. But it is the demand of duty on the transaction value. In spite of the ocean loss, the appellant has to make payment on the basis of the Bill of Lading quantity. Therefore this is the case where the transaction value arrived at based on the Bill of Lading quantity is payable as price for the quantity received in shore tank. The learned Consultant for the Revenue has brought to our attention to the Boards Circular 6/2006, dated 12-1-2006 where the entire issue is clarified. In order to appreciate the issue discussed we are reproducing the same :- Circular No. 06/2006 F. No.467/79/2005-Cus.V Government of India Ministry of Finance Department of Revenue CBEC New Delhi, 12th January, 2006 To, All Chief Commissioners of Customs, All Chief Commissioners of Central Excise, All Director Generals/Chief Departmental Representative, CESTAT All Commissioners of Customs All Commissioners of Central Excise and All Commissioners of Central Excise Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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