TMI Blog2009 (5) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... department. Revenue has filed the appeal against the impugned order wherein it was held that demurrage charges are not includible in the assessable value for the purpose of calculation of customs duty. 2. No one has appeared on behalf of the respondents. There is no request for adjournment also. They were not represented when the stay application filed by the Revenue had come up also. 3. We have heard the learned D.R., on behalf of Revenue. 4. In respect of the 18 consignments discussed above the respondents had paid demurrage charges amounting to ₹ 1,16,41,370/-. The Revenue contends that this amount has to be treated as cost of transportation and the same should be included. 5. The matter had come up before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14.8.91, it was clarified that the circular issued in 1991 was not correct and after the amendment of customs valuation rules, demurrage should be added to the cost of transportation. In fact the Tribunal noted that the circular deals both with the demurrage and dispatch monies. It clarifies that demurrage will form part of assessable value and dispatch money do not. In the subsequent Circular No.5/2006-Cus. dated 12/2006 issued by the Board it was clarified that all importations where assessments were made provisional prior to 02.03.2001 may be finalized excluding demurrage in view of the decision of the Hon'ble Supreme Court in M/s. Indian Oil Corporation 2004 (165) E.L.T. 57 S.C. Thus the picture that emerges from various circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding the includability of the demurrage charges in the assessable value. The learned advocate relied on the authority of the IOC decision of the Tribunal affirmed by the Supreme Court and he further relied on the Commentary on the GATT Valuation Code but the issue is highly debatable as the learned departmental representative referred to certain other decisions of other country's wherein it has been held that demurrage is only extended freight. However, the present legal position is that demurrage is to be added to the cost of transportation by virtue of an amendment in the Customs Valuation Rules. In any case, since the amendment is only of recent origin, for the relevant period we cannot hold demurrage would be includable in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o all importers since there was no instruction after 1991 and beneficial circular in favour of importer had to be implemented. Subsequent to issue of this circular, Hon'ble Supreme Court decided IOC case 2004 165 E.L.T. 257 (S.C.) and review petition also failed. In view of the fact that the Tribunal has held that the present legal petition is that demurrage has to be added to the assessable value, only question that remains is whether it can be said that all assessments prior to 26.9.2006 have to be made excluding the demurrage charges from assessable value as held by the Tribunal. Since we find that we are unable to agree with the view taken by the Division Bench in Shine Petroleum Pvt. Ltd. vs. CC Mangalore reported in 2008 (224) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
