TMI Blog2017 (6) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance with the condition of pre-deposit as provided for under Section 129E of the Customs Act, we are of the considered opinion that all these cases are to be remanded back to the learned Commissioner (A) for deciding the same on merits keeping in view the law laid down by the apex court - appeal allowed by way of remand. - C/503/2006-DB, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513 And C/514/2006-DB - 20730-20741/2017 - Dated:- 5-5-2017 - Shri S.S Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Mr. Sandeep Gopalakrishnan, Advocate Menon Pai Advocates, For the Appellant Mr. N. Jagadish, AR, For the Respondent ORDERE Per: S.S GARG These 12 appeal are directed against the impugned order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment took a stand that the appellant is liable to pay duty on the basis of Bill of Lading quantity. On these allegations, a show-cause notice dated 4.1.2006 was issued to the appellant and after following the due process of law, the Deputy Commissioner vide the Order-in-Original dated 16.3.2006 confirmed the demand in the show-cause notice. Aggrieved by the said order, appellant filed appeals before the Commissioner (A). The Commissioner of Customs (A) by common order dated 22.6.2006 directed the appellant to make a pre-deposit of ₹ 3.5 crore on or before 15.7.2006 as a condition for stay of recovery of the balance amount confirmed vide various Orders-in-Original. On receipt of the stay order, the appellant approached the Cabinet C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 valuation of imported goods under the Customs Act. He further submitted that this issue is no more res integra and has been settled in favour of the appellant by the apex court in the case of Mangalore Refinery Petrochemicals Ltd. vs. CC, Mangalore reported in 2015 (323) ELT 433 (SC) wherein the apex court has held that the quantity actually re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the time when the goods reach the customs barriers and the bill of entry for home consumption is filed. [at paras 17 and 18] 16. Secondly, the taxable event in the case of imported goods, as has been stated earlier, is import . The taxable event in the case of a purchase tax is the purchase of goods. The quantity of goods stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, as has been stated above, is for the reason that the import is not complete until what has been stated above has happened. The circular dated 12th January, 2006 on which strong reliance is placed by the revenue is contrary to law. When the Tribunal has held that a demand or duty on transaction value would be leviable in spite of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Learned counsel further submitted that there was no justification for demand of NCCD, insofar as the goods under import were not chargeable to any other duty of customs by virtue of exemption granted vide Notification No.43/2002- Cus. dated 19.4.2002. Though, the appellant has already paid the NCCD demanded by the department during the pendency of appeal but the contention of the appellant is that he is not liable to pay the same to the department. 5. After considering the submissions of both the parties and the judgment of the apex court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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