TMI Blog2017 (10) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... used for charging duty as it does not reflect the quantity of the goods received at the place of importation - appeal allowed - decided in favor of appellant. - C/287/2008-DB, C/288/2008-DB, C/289/2008-DB, C/290/2008-DB, C/291/2008-DB, C/292/2008-DB, C/293/2008-DB, C/294/2008-DB, C/295/2008-DB, C/296/2008-DB - Final Order No. 21829-21838 / 2017 - Dated:- 29-8-2017 - Shri S.S Garg, Judicial Member And Shri Ashok K. Arya, Technical Member Mrs. Radhika Shriranjini, Advocate For the Appellant Dr. J. Harish, AR For the Respondent ORDER Per : Ashok K. Arya M/s. Chemplast Sanmar Ltd. is in appeal against the common Order-in-Appeal No.518-527/2007 dated 30.11.2007 wherein the Department confirms the demand of duty of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only on goods imported into India. Goods are said to be imported into India when they are brought into India from a place outside India. Unless such goods are brought into India, the act of importation which triggers the levy does not take place. If the goods are pilfered after they are unloaded or lost or destroyed at any time before clearance for home consumption or deposit in a warehouse, the importer is not liable to pay the duty leviable on such goods. This is for the reason that the import of goods does not take place until they become part of the land mass of India and until the act of importation is complete which under Sections 13 and 23 happens only after an order for clearance for home consumption is made and/or an order permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons for arriving at the conclusion that the bill of lading quantity alone is to be looked at for the purpose of determining the value of goods imported. The first reason that it gives is that duty has to be on the total payment made by the assessee irrespective of the quantity received. The second reason given is that an ad valorem duty would necessarily lead to this result but duty levied at the specific rate would not, the quantity of goods in the latter case being only on the basis of the quantity of crude oil received in the shore tank. The third reason that it gives is that Section 14 kicks in when the duty is on an ad valorem basis and Sections 13 and 23 do not stand in the way because it is not the question of demanding duty on good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 stated in a bill of ladin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antity 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 ocean loss , it flies ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
