TMI Blog2018 (2) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Order No. A / 10289 /2018 - Dated:- 9-2-2018 - Dr. D.M. Misra, Member (Judicial) And Mr. Raju, Member (Technical) For the Appellant: Mr. A. Upadhyaya (Advocate) For the Respondent: Mrs. Nitina Nagori (A.R.) ORDER Per : Dr. D.M. Misra Heard both the sides. This is an appeal filed against order-in-appeal No. 306/2009/CUS/COMMR-A/KDL passed by the Commissioner of Customs (Appeals) Kandla. The short issue involved in the present appeal is whether the appellant are required to discharge duty on the invoice quantity of bulk liquid cargo imported as reflected in the Bills of entry or on the quantity shown in the out turn report as determined. 2. Ld. Advocate submits that the issue is covered by the judgment of Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 goods not received, but it is the demand of duty on the transaction value. In spite of the ocean loss , the appellant has to make payment on the basis of the Bill of Lading quantity. 15. We are afraid that each one of the reasons given by the Tribunal is incorrect in law. The Tribunal has lost sight of the following first principles when it arrived at the aforesaid conclusion. First, it has lost sight of the fact that a levy in the context of import duty can only be on imported goods, that is, on goods brought into India from a place outside of India. Till that is done, there is no charge to tax. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier, 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 lading would perhaps reflect the quantity of goods in the purchase transaction between the parties, but would not reflect the quantity of goods at the time and place of importation. A bill of lading quantity therefore could only be validly looked at in the case of a purchase tax but not in the case of an import duty. Thirdly, Sections 13 and 23 of the Customs Act have been wholly lost sight of. Where goods which are imported are lost, pilfered or destroyed, no import duty is leviable thereon until they are out of customs and come into the hands of the importer. It is clear therefore, that it is only at this st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the face of Section 23 of the Customs Act in particular, the general statutory scheme and Rules 4 and 9 of the Customs Valuation Rules. 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. 5. The ratio laid down by the Hon ble Supreme Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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