TMI Blog2017 (6) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... ty - appeal allowed - decided in favor of appellant. - C/465/2007-DB, C/466/2007-DB, C/467/2007-DB, C/468/2007-DB, C/469/2007-DB - Final Order No. 20716-20720 / 2017 - Dated:- 4-5-2017 - Shri S.S Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Mr. Sandeep Gopalakrishnan, Advocate For the Appellant Dr. J. Harish, AR For the Respondent ORDER Per S. S. Garg Appellants have filed five appeals against the common impugned Order-in-Appeal No.285-289/2007 dated 24.4.2007 passed by the Commissioner (A) whereby the Commissioner (A) had disposed of 5 appeals on the ground that an identical issues were involved in those five appeals. As against 5 appeals, only three appeal Nos. C/468, 469 465/2007 were liste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warehoused in the bonded tanks at importers premises by pumping through pipelines. Later, ex-bond clearance were also allowed on provisional assessment and on the receipt of final figure relating to payment of cost, freight, insurance and canalizing commission on the crude oil imported, the appellant submitted the same before the department for finalization of assessment. On account of payments made by the appellant during the pendency of assessment, they would have become entitled for refund of substantial amount on finalization of assessment. The department, however, took a stand that insofar as the figures representing cost, freight, insurance and canalizing commission were relatable to the Bill of Lading quantity and the said amount ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such importation in the course of international trade where (a) the seller and the buyer have no interest in the business of each other, (b) one of them has no interest in the business of other and (c) the price is the sole consideration of the sale. He further submitted that as per Section 12 of the Customs Act, the duties of the customs can be levied only in respect of goods imported into India and it follows that only the price paid for the goods imported into India can be taken into consideration for the purpose of levy of customs duty under the Act. He also submitted that the goods which are not imported into India on account of their not being received in the shore tanks of the importer cannot be considered for the purposes of valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in Bill to Amend Section 20 of the Sea Customs Act, 1878 and Section 3 of the Central Excises and Salt Act, 1944, Re [AIR 1963 SC 1760 = (1964) 3 SCR 787 sub nom Sea Customs Act (1878), S. 20(2), Re] SCR at p. 823 observed as follows : Truly speaking, the imposition of an import duty, by and large, results in a condition which must be fulfilled before the goods can be brought inside the customs barriers, i.e., before they form part of the mass of goods within the country. It would appear to us that the import of goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of the mass of goods within the country; the taxable event being reached at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he least, transaction value which occurs in the Customs Valuation Rules has to be read under Rules 4 and 9 as reflecting the aforesaid statutory position, namely, that valuation of imported goods is only at the time and place of importation. 17. The Tribunal s reasoning that somehow when customs duty is ad valorem the basis for arriving at the quantity of goods imported changes, is wholly unsustainable. Whether customs duty is at a specific rate or is ad valorem makes not the least difference to the above statutory scheme. Customs duty whether at a specific rate or ad valorem is not leviable on goods that are pilfered, lost or destroyed until a bill of entry for home consumption is made or an order to warehouse the goods is made. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to be finalised on the basis of such quantity as revealed by the Cargo Intake Certificate. 18. We therefore, set aside the Tribunal s judgment and declare that the quantity of crude oil actually received into a shore tank in a port in India should be the basis for payment of customs duty. Consequential action, in accordance with this declaration of law, be carried out by the customs authorities in accordance with law. All the aforesaid appeals are disposed of in accordance with this judgment. 4.1 Further, the apex court has also settled the issue of demurrage charges in the case of CCE, Mangalore vs. Mangalore Refinery Petrochemicals Ltd. reported in 2015 (325) ELT 214 (SC) wherein in para 5, the apex court has held as under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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