TMI Blog2023 (3) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... ppliers is not sustainable - appeal allowed. - Customs Appeal No. 11543 of 2013- DB - Final Order No. A/10471/2023 - Dated:- 17-3-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Ms. Padmavati Patil Shri Kiran Chavan, Advocates for the Appellant Shri G. Kirupanandan, Assistant Commissioner (AR) for the Respondent ORDER The issue involved in the present case is that the bulk liquid cargo imports of Motor Spirit [MS, for short] ,on 22.06.2011, whether custom duty is payable on the value determined on the quantity received in Shore Tanks as claimed by the Appellants or on transaction value based on pnvoice price of the overseas suppliers, as held in the impugned order dated 21.02.2013, irrespective of whether the cargo is chargeable to ad valorem rate of duty or to specific rate of countervailing duties. 2. Ms. Padmavati Patil, Learned Counsel along with Shri Kiran Chavan, Learned Advocate appearing on behalf of the appellant submits this issue has already been decided by the Hon ble Supreme Court in the case of Mangalore Refinery Petrochemicals- 2015 (323) ELT 433 (S.C) and relying on the said judgment this Tribunal in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply in respect of goods not belonging to Government. Section 13. Duty on pilfered goods . - If any imported goods are pilfered after the unloading thereof and before the proper officer has made an order for clearance for home consumption or deposit in a warehouse, the importer shall not be liable to pay the duty leviable on such goods except where such goods are restored to the importer after pilferage. Section 23. Remission of duty on lost, destroyed or abandoned goods. - (1) Without prejudice to the provisions of section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods have been lost otherwise than as a result of pilferage or destroyed, at any time before clearance for home consumption, the Assistant Commissioner of Custom or Deputy Commissioner of Customs shall remit the duty on such goods. (2) The owner of any imported goods may, at any time before an order for clearance of goods for home consumption under section 47 or an order for permitting the deposit of goods in a warehouse under section 60 has been made, relinquish his title to the goods and thereupon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 permitting the deposit of goods in a warehouse is made. Under Section 23(2) the owner of the imported goods may also at any time before such orders have been made relinquish his title to the goods and shall not be liable to pay any duty thereon. In short, he may abandon the said goods even after they have physically landed at any port in India but before any of the aforesaid orders have been made. This again is for the good reason that the act of importation is only complete when goods are in the hands of the importer after they hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be 1.125% of free on board value of the goods; Provided further that in the case of goods imported by air, where the cost referred to in clause (a) is ascertainable, such cost shall not exceed twenty per cent of free on board value of the goods : Provided also that where the free on board value of the goods is not ascertainable, the costs referred to in clause (a) shall be twenty per cent of the free on board value of the goods plus cost of insurance for clause (i) above and the cost referred to in clause (c) shall be 1.125% of the free on board value of the goods plus cost of transport for clause (iii) above. Provided also that in case of goods imported by sea stuffed in a container for clearance at an Inland Container Depot or Container Freight Station, the cost of freight incurred in the movement of container from the port of entry to the Inland Container Depot or Container freight Station shall not be included in the cost of transport referred to in clause (a). 13 . This Rule merely restates what is already stated in Section 14, namely, that the value of imported goods has to be the value of such goods for delivery only at the time and place of imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excises and Salt Act, 1944, Re [AIR 1963 SC 1760 = (1964) 3 SCR 787 sub nom Sea Customs Act (1878), S. 20(2), Re] SCR at p. 823 observed as follows : Truly speaking, the imposition of an import duty, by and large, results in a condition 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4.1 Following the above Hon ble Supreme Court judgment, this Tribunal in the appellant s own case held that the Customs duty is leviable on actual receipt shore tank quantity and not quantity mentioned in the invoices. The decision in the appellant s own case is reproduced below:- Heard both sides and perused the record. All these appeals are filed against respective orders passed by Commissioner Customs(Appeals),Kandla. Since common issues are involved in these appeals these are taken up together for disposal. 2. Ld. Advocate for the appellant submits that during the relevant time, the appellants had imported few consignments of motor spirit and high speed diesel and cleared the same through Kandla Port. They had filed into-Bond Bills of Entry and the imported consignments were stored in warehouse without payment of duty u/s 58 of the Customs Act, 1962. The same were later allowed clearance against Ex-bond Bills of Entry for home co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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