TMI Blog2020 (2) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 147 of the Customs Act, 1962. The person presenting the papers cannot be held to be responsible for short levy of duty on grounds of having filed Bill of Entry on behalf of importer - Further, the addition of 1% of the price paid to ship owner as loading and un-loading charges is also not sustainable in law. In the present case, the actual unloading charges being nil, nothing can be added towards un-loading charges. Further, the addition of 20% and 1.125% of the price paid to ship owner towards freight and insurance, is also not sustainable in law because the said addition is based on a wrong presumption that price paid to ship owner for bunkers and stores is a FOB price. Further, no amount has been incurred by JSW in addition to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the importer M/s JSW Ispat Steel Ltd. (now known as M/s JSW Steel Ltd.), who had chartered a Foreign Vessel M.V.Spar Virgo for carriage of Iron Ore Fines. The vessel arrived at Haldia Port and after discharge of import cargo there it arrived at Dhamra Port in Ballast for movement of costal cargo of iron ore fines from Dhamra Port to Dharmtar Port. The appellants filed Bill of Entry dated 01.01.2013 for payment of duty on bunkers, provisions and stores likely to be consumed during coastal voyage. The Bill of Entry was provisionally assessed and the appellants paid provisional duty of ₹ 24,47,983/- vide TR-6 Challan dated 04.01.2013. Subsequently, the said Bill of Entry was finalized on 31.08.2015. The said assessment order was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Reliance is also placed on Aspin Wall and Company Versus C.C.E. (2001) 132 ELT 644, in which it has been held that simply by presenting papers for clearance of goods, one does not become importer of goods or agent of Importer under Section 147 of Customs Act, 1962. The person presenting the papers cannot be held to be responsible for short levy of duty on grounds of having filed Bill of Entry on behalf of Importer. He further submitted that Revenue has added 1% of the price paid to ship owner as loading and unloading charges under Rule 10(2)(b) of the Customs Valuation Rules, 2007. He further submitted that the said addition of 1% of the price is wrong and illegal on the following reasons: (a) It is submitted that neither anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p owner for bunkers and stores is a F.O.B price and thus freight and insurance components needs to be added. (b) The fact is that price paid to ship owner for costal run is not F.O.B. price rather it was all inclusive price prevailing at Indian Port and thus, nothing was to be added towards freight and insurance. (c) Further, Rule 10 (2) makes it very clear that, value shall be for delivery at the time and place for importation and in case, value of goods are taken at a place other than the place of delivery of importation and freight and insurance component upto the place of importation is not ascertainable, in that case alone this 20% or 1.125% loading was permissible. In the present case price is ascertainable for delivery at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of importer. Further, we find that the addition of 1% of the price paid to ship owner as loading and un-loading charges is also not sustainable in law in view of the judgement of apex Court in the case of Wipro Ltd. Vs. A.C.Customs : 2015 (319) ELT 177 (SC), wherein the Apex Court has held that unloading charges at a flat rate of 1% of FOB value added by Customs authorities in assessable value is in violation of Section 14 of the Customs Act, 1962. In the present case, the actual unloading charges being nil, nothing can be added towards un-loading charges. Further, the addition of 20% and 1.125% of the price paid to ship owner towards freight and insurance, is also not sustainable in law because the said addition is based on a wrong presu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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