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2016 (8) TMI 637 - CESTAT KOLKATA

2016 (8) TMI 637 - CESTAT KOLKATA - TMI - Classification - import of Phosphoric acid - full exemption under Notification No.265/92-CUS dated 27.08.1992 for the manufacture of fertilizers - Held that:- Appellant will demonstrate, with the help of few imports, before the Adjudicating authority that there was a difference in the Ullage Report quantity and quantity of cargo received in shore tank with respect to imports made after CBEC Circular dated 27.12.2002. If on examination/demonstration adjud .....

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e to 2000 MT of Ammonia received from M/s.EID Parry (India) Ltd. which was a replacement of appellant s Ammonia quantity diverted from Haldia due to technical problems and stored in the tank of M/s. EID Parry. There is no evidence on record that appellant on any occasion has imported Ammonia in excess of Ullage report quantity which is unmanifested. Revenue thus cannot ask for duty on a quantity in excess of Ullage Report quantity/quantity declared in the Bills of entry based on presumptions in .....

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ocate & Shri Tanmoy Chakraborty, Advocate for the Appellant Shri A. K. Das, Spl. Counsel for the Revenue ORDER Per Shri H. K. Thakur Appeal No.C/321/2007 has been filed by the appellant M/s.Tata Chemicals Ltd. (earlier M/s.Hind Level Chemicals Ltd.) against the Order-in-Original No.KOL/CUS/PORT/57/2007 dated 30.03.2007 under which, inter alia; demand of ₹ 6,01,54,542/-, along with interest, with respect to 5988 MT of imported Phosphoric acid, calculated by the department, was confirmed .....

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ion under Notification No. 166/76-CUS dated 02.08.1976 (upto 27.08.1992) and full exemption under Notification No.265/92-CUS dated 27.08.1992 for the manufacture of fertilizers. That similarly Ammonia imported was chargeable to NIL rate of duty under various Notifications issued from time to time. 2.1 That during the period 01.01.1999 to 31.03.2003 appellant imported Phosphoric acid and Ammonia and cleared the same at concessional/NIL rate of duty for the manufacture of fertilizers. That Phospho .....

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is a difference between the quantity of Phosphoric acid and Ammonia indicated in the Ullage Report and the quantity received in the offshore tanks. That appellant received show cause notice dated 15.09.2004 demanding, inter alia, duty/differential duty on the difference in the quantity of goods imported, which are indicated in the Ullage Report and the quantity received in the offshore tanks. That importers were facing difficulty with respect to duty payment on the quantity not received in the .....

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2. That after this Circular appellant is following procedure specified in para-6 of this Circular and movement of imported goods through pipeline to the off shore tanks of the appellant take place in the presence of customs and same independent surveyors, who were surveying earlier, whose reports are now accepted by the department for the shortages after 31.03.2003. That Hon ble Apex Court in Mangalore Refinery & Petrochemicals Ltd. v. CC, Mangalore [2015 (323) ELT 433 (SC)] held that valuat .....

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under Section 14(2) of the Customs Act, 1962. 2.2 That excess quantity of nearly 2000 MT of Ammonia found is off shore tanks of the appellant was received from EID Parry (India) Ltd.. That this 2000 MT of Ammonia, received from EID Parry (India), was reciprocation of 2000 MT of appellant s Ammonia discharged into the Ennore Terminal of M/s.EID Parry (India) Ltd., Chennai due to breakdown of WBSED powersupply in Haldia from May 31, 2000. That the allegation of importing excess quantity of Ammonia .....

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entire ullage Report quantity was paid as prior entry bills of entry were filed and off shore tank reading was not available at the time of payment of duty. 3. Shri A.K.Das (Spl.Counsel) appearing on behalf of the Revenue argued that the entire quantity of Phosphoric acid and Ammonia indicated in the Ullage Report/manifest was cleared on payment of concessional rate of duty/NIL rate during the relevant period. That once the entire ullage quantity was being taken delivery on payment of duty then .....

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assessment of bulk liquid cargo which is not discharged through regular pipelines and cleared directly on payment of duty under a white Bill of Entry, i.e., without the cargo being warehoused in a shore tank. The point raised is how to determine the quantity in such cases. It needs to be mentioned here that though the CEGAT order in case of M/s HPCL relates to a situation of bonded tanks in a warehousing scenario, it would nevertheless be applicable in a situation of home consumption shore tank .....

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n payment of duty under a white Bill of Entry, i.e., without the cargo being warehoused in a shore tank, assessment may continue to be done as per ship s ullage survey report. That a procedure on supervision during unloading/movement was also prescribed by CC, Kolkata under Public Notice No.34/2003 dated 14.05.2003 for such movement. 3.1 It was also the case of the learned Spl.Counsel that excess Ammonia was the result of unmanifested excess quantity imported by appellant and the same should hav .....

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the department is that for the period before CBEC Circular dated 27.12.2002 movement of cargo from the vessel s ullage to the storage tank of the appellant, through a pipeline, was not done under the customs supervision as per prescribed procedure. 4.1 It was argued by the Advocate appearing on behalf of the appellant that after CBEC Circular dated 27.12.2002 the procedure prescribed by the customs is followed for the imported cargo of Phosphoric Acid & Ammonia acid. Same reports given by i .....

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e same is definitely possible. In the interest of justice we remand this matter for demonstrating this fact to the Adjudicating authority. Appellant will demonstrate, with the help of few imports, before the Adjudicating authority that there was a difference in the Ullage Report quantity and quantity of cargo received in shore tank with respect to imports made after CBEC Circular dated 27.12.2002. If on examination/demonstration adjudicating authority finds it so then the same should be held to .....

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which was a replacement of appellant s Ammonia quantity diverted from Haldia due to technical problems and stored in the tank of M/s. EID Parry. There is no evidence on record that appellant on any occasion has imported Ammonia in excess of Ullage report quantity which is unmanifested. Revenue thus cannot ask for duty on a quantity in excess of Ullage Report quantity/quantity declared in the Bills of entry based on presumptions in the absence of any evidence to that effect. Accordingly, the arg .....

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