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TMI Blog2020 (2) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals), whereby the Commissioner (Appeals) has rejected the appeals of the appellants by upholding the Order-in-Originals. All the ten appeals involve identical facts and the issue involved is also identical and, hence all the ten appeals are being taken up for disposal together. For the sake of convenience, the Customs Appeal No.C/77190/2019 is taken up. 2. Briefly stated the facts of the case as alleged by the Revenue are that the appellants are engaged in the shipping business and had acted as Shipping Agent 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 28 of the Customs Act of 1962 to a person other than importer is not maintainable at all. (b) Bill of Entry which is finally assessed (& assessment order specifically mentions that this is an appealable order) and which has not been appealed by Department cannot be disturbed by issuing Show Cause Notice under Section 28 of the Customs Act in view of numerous decisions and especially in view of the Hon'ble Supreme Court Judgement in the case of ITC Ltd. Vs. CCE, Kolkata-IV 2019-TIOL-418-SC-CUS-LB. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the price paid to ship owner, has been made on the basis of Circular, which is contrary to the statutory provisions and cannot have any legal basis. It is further submitted that Revenue has added 20% and 1.125% of price paid to ship owner towards freight and insurance respectively under Rule 10 (2)(a) and (c) respectively of Customs Valuation Rules, 2007, which is also not legally correct in view of the following reasons : (a) This addition is based on a wrong presumption that price paid to ship 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 Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption, includes any owner, beneficial owner or any person holding himself out to be the importer" Further, we find that in the case of Aspin Wall and Company cited (supra), 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 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, 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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