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2016 (11) TMI 222 - CESTAT HYDERABAD

2016 (11) TMI 222 - CESTAT HYDERABAD - TMI - Refund claim - Refund of excess paid Customs duty on short quantity received between ship ullage and quantity received in shore tanks - Held that: - In an identical matter relating to Ruchi infrastructure Limited, the Hon'ble CESTAT, Bangalore [2007 (11) TMI 210 - CESTAT, BANGALORE] held that It is now well settled that the assessment has to be done on the basis of the shore tank quantity not on basis of ship ullage report. - To the effect that th .....

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ohan 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, Receivers' surveyors and chief of the Vessel in the presence of customs Offi .....

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e finalized and also communicated to the appellants. During the process of finalization of the assessment the importers and their agents were also requested for production of various documents necessary for final assessment. The appellants filed ex-bond bill of entry (in the case of Home consumption) as per the existing practice and at no point of time they requested for shore ullage assessment by disputing the on board ullage assessment. The fact that the assessments were finalized after reques .....

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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 .....

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ssing on the incidence of duty. 3. Department has filed appeal on following main grounds. i) That the assessee has filed the refund claim before the finalization of the Bills of Entry. ii) That the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd., Vs. Commissioner of Customs (Prev,) 2004(172) ELT 145 (SC) has made it clear that claim of refund cannot be maintained unless the order of assessment has been challenged. Since the assessee has not challenged the assessment order the .....

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of its notification or publication. 4. Ld. AR Sh Nagaraj Naik reiterated the grounds of appeal. 5. On behalf of respondent Ld. Advocate Sh. 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 .....

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Il CUS TECH, dated 24.03.2003, mentioned in the Grounds of Appeal [Para 3(ii)] stands withdrawn. Ld. Advocate further contended that since the assessments were challenged based on the Hon'ble Supreme Court's directive in NOCIL, now reiterated in Mangalore Refineries & Petrochemicals Limited, (supra), even before finalization of the assessment, there is no formal challenge required as was observed by the Commissioner (Appeals) in the OIA No.3/2006 dated 17.01.2006, therefore assessmen .....

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llip;……… The learned Commissioner (A) has considered all the aspects into account and he has clearly held that the respondents are entitled for the refund claim. He had also dealt with the contention of the Revenue that the respondent had not challenged the assessment and therefore, they were not entitled for the refund claim. In other words, Revenue contends that without challenging the assessment, refund claim cannot be filed. After going through the records, the Commissio .....

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ken 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 relied on various judicial decisions and also Board's circular which was based on the Apex Court's decision in the case of NOCIL India Ltd. in Civil Appeal No. 6764/1999 [2002 (142) E.L.T. A280 (S.C.)] which has actually upheld the Tribunal's order that customs duty is leviable on the onshore tank receipt c .....

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