TMI Blog2016 (11) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... shore tank receipt quantity, i.e. dip measurement in tanks on shore should be taken on basis for levy of customs duty. Appeal dismissed - decided against Revenue. - Appeal No. C/209/2006 - Order No. A/30785/2016 - Dated:- 25-8-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) And Sh. Madhu Mohan Damodhar, Member(Technical) Sh. Nagaraj Naik, Deputy Commissioner (AR) for the Appellant Sh. S. Thirumalai, Advocate for the Respondent. [Order per: Madhu Mohan Damodhar] Brief Facts: Nikhil Refineries Ltd., the respondents herein, are the importers of edible oils through Kakinada seaport. They have paid the customs duty on imported edible oil as per the ullage of the vessels conducted by Owners' surveyors, Receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were returned for want of Triplicate copy of Bili of entry with endorsement as to finalisation details, among other queries and the refund claims filed after the finalization of the assessments were hit by the limitation of time in terms of the provisions of Sections 27 of the customs Act, 1962. 2. The assessee preferred an appeal against the said Speaking Order before the Commissioner (Appeals), who vide the impugned Order-in-Appeal set aside the Speaking Order for the following reasons: i) that the refund claims cannot be treated to have hit by time limitation. ii) that the duty should be demanded only on DIP measurement and not as per the ullage report as settled by Hon'ble Supreme Court in its order dated 20.02.2002 in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Tirumalai stated that the issue is no longer res integra and the issue of whether quantity to be considered is that at the destination port or the shore tank has been categorically decided by the Hon'bte Supreme Court in Mangalore Refineries Petrochemicals Ltd. Vs. COC, Mangalore [2015-TOL-199-SC-Cus.]. Ld. Advocate pointed out that in terms of Para 17 and 18 of the said judgment, the Hon'ble Apex Court has held that whether the cargo is subject to duty on the basis of specific rate or ad valorem rate, the shore tank receipt alone shall be taken for the purpose of valuation. Based on this, the CBEC has issued Circular No.34/2016-Customs, dated 2607.2016 whereby the earlier Circulars No.96/2002-Customs, dated 27.12.2002 and No.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim cannot be filed. After going through the records, the Commissioner (A) has come to the conclusion that even before the assessments were finalized and when they were provisional, the respondent contended that duty should be paid only on the basis of the shore tank quantity in terms of the various decisions and board's instruction and therefore, they filed refund claim. But, the refund papers filed by the respondents were returned by the department. Therefore, it cannot be said that the respondent did not challenge the assessment. In fact no action was taken on the refund claim and assessment was finalized based on the ship ullage. In view of this, the Revenue's grounds of appeal do not have any merit. The Commissioner (A) has rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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