TMI Blog2007 (10) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant imported Commercial Liquefied Petroleum Gas (LPG). The issue in both the appeals is one and the same and therefore, we are taking up the matter for issue of a common order. 3. The appellants have a CIF Contract with the foreign supplier. The goods are loaded in vessels and thereafter they reach the port for unloading. A minimum time is given for unloading before which the goods have to be unloaded and this time is known as lay time. If there is a delay in discharge of cargo, due to various reasons, demurrage is charged by the carrier to the supplier of the goods. In turn the supplier collects this demurrage charges from the importers who are the appellants. The point at issue is whether the demurrage charges are to be included in the assessable value of the goods imported for customs duty purposes. 4. Revenue proceeded against the appellants in both the cases by way of issue of show cause notice for inclusion of the demurrage charges in the assessable value of the goods imported. In the case of the first appellant, the Adjudicating Authority confirmed a demand of Rs.79,73,330/-. Interest to the tune of Rs.28,98,945/- was demanded. Further, a penalty of Rs. 1,08,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion has been upheld by the Supreme Court. 7. The learned departmental representative took us through the decision of the Supreme Court which affirmed the above decision and said that the Hon'ble Apex Court has not examined the issue on merits. The Supreme Court affirmed the decision of the Tribunal only on the ground that there was a Board's circular dated 14-8-1991 in favour of the party and therefore, relying on various decisions the Supreme Court held that the Board's Circular has a binding effect on the Revenue and therefore, the clarification contained in the said circular should be given effect to. Further, she said that since the Supreme Court has not examined this issue on merits and as the Tribunal's order has merged with the order of the Supreme Court the decision of the Tribunal on merits is not binding. She also referred to the further circulars issued on the subject and relied on the Board's Circular No. 14/2001-Cus., dated 2-3-2001 and Board circular 26-9-2006 wherein the issue has been clarified and it has been decided that demurrage charges to be included in the CIF value for the purposes of customs duty. 8. The learned Advocate took us through the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d". Thus the learned departmental representative urged the point that as per the international understanding demurrage is an extended freight and therefore, it is definitely includable in the cost of the transportation. Hence, she said that the Tribunal should confirm the impugned Orders-in-Original. 10. On a very careful consideration of the entire issue, we find that the department has taken contrary stands at different points of time. In the year 1991, the Board issued a circular based on the discussions in the Tariff Conference of Collectors held in August 1991. According to the Circular, it is stated that "Having regard to the above and the fact that in no other Custom House there was a practice to include or deduct such moneys, it has been decided that 'demurrage' and 'despatch' money may not form a part of assessable value ." However in 2001, the Board issued a Circular No. 14/2001-Cus.dated 2-3-2001 wherein it was clarified that "the earlier circular should not be construed as authorizing the exclusion of any ship demurrage charges paid which are required to be included in the assessable value of the goods under Section 14 of the Customs Act, 1962 by virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court of India, in the case of M/s. Indian Oil Corporation [2004 (165) E.L.T. 57 (S.C.)], all importations prior to 2-3-2001 may be kept provisional. 2. Now, in view of the Department's Review Petition in the case of Commissioner of Customs, Calcutta v. Indian Oil Corporation Limited being dismissed by the Hon'ble Supreme Court [2005 (186) E.L.T. A119 (S.C.)] all pending provisional assessments in respect of importation prior to 2-3-2001 may be finalized accordingly. 3. With regard to period after 2-3-2001, the matter is under consideration and clarification shall be issued in due course. 4. Receipt of the Circular may please be acknowledged. In terms of the circular, there was a direction that all importations prior to 2-3-2001 may be kept provisional. With regard to period after 2-3-2001, it was stated that the matter under consideration and clarification shall be issued in due course Therefore, the circular dated 12-1-2006 has not decided the entire issue and has simply said that the matter was under examination. Finally, the Beard issued the Circular No. 26/2006 dated September 26, 2006 wherein it has been clarified that in view of the Apex Court's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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