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TMI Blog2008 (1) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 [IGCRD (Rules)]. Following due process of law, the Assistant Commissioner of Central Excise, Pondicherry-I Division demanded an amount of Rs.80,108/- towards differential duty on 22.975 MTs of imported oil short received at the assessee's factory and not used in the manufacture of refined oil in terms of the Notification No. 16/2000-Cus. In the impugned order, the Commissioner of Central Excise (Appeals) found that the appellants had utilized the crude sunflower oil received in their shore tank for the intended purpose and vacated the demand. In arriving at the above decision, the Commissioner of Central Excise (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the issue as to whether the quantity received in the shore tank or the quantity as per the ullage report is the basis for assessment. He pleaded that the order of the original authority deserved to be restored. 3. The Ld. Counsel for the appellants relies on the Tribunal's decision in Agarwal Industries Ltd. (supra) and KTV Oils and Fats Pvt. Ltd. and another (supra) and Circular No. 96/2002-Cus dated 27.12.20002. He submits that the ratio of the case law and the instructions contained in the Circular were to the effect that where the bulk liquid cargo was received in the storage tank of the importer, the quantity relevant for assessment was that quantity received in such storage tank called shore tank. The Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 discharge which is under custodial/customs control. In such situations, the port/custodian would be issuing reports for quantity actually received. In the light of the guidelines of CEGAT orders referred to above, it has been felt that it is this quantity which should be taken into account for the purposes of levy of duty. However, in a situation where ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2002. The para 2 and 4 of the Board's Circular refer to situations and decisions wherein the transfer of cargo has taken place from tankers into shore tank and therefore the ground of the department that the circular has referred and is applicable only to such cases of transfer through pipelines is not correct. The last portion of para 4 of the said circular No.96/2002-Cus reads as follows:- "Now, with the pronouncement of Supreme Court judgment in the case of M/s. NOCIL referred to above, the controversy surrounding "ullage survey report" Vs "shore tank receipt" has come to an end, and the final position which emerges is that the quantification of bulk liquid cargo for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... percentage of the imported goods were damaged in transit and hence could not be used for the intended purpose, Hon'ble Supreme Court has held that benefit of notification cannot be denied inasmuch as the expression "for use" is to be read as "intended for use". As such the Hon'ble Supreme Court has further observed that the benefit can only be denied when there is diversion of the imported goods for other purposes. In the present case, Revenue has not adduced any evidence to show that such loss of the oil was not on account of the facts explained by the assessee. As such by following the ratio of the Hon'ble Supreme Court decision referred supra, we find no merit in the revenue's appeal and reject the same." Therefore, I do not find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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