TMI Blog2023 (9) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... en as the basis for payment of duty at the time of ex-bond bills of entry. The impugned order-in-appeal is set aside - appeal allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Sachin Chitnis Shri Viraj Reshamwala, Advocates for the Appellant Shri Prabhat K. Rameshwaram, Addl. Commissioner (AR) for the Respondent ORDER The brief facts of the matter are that M/s. Indian Oil Corporation Limited (IOCL for short), Kandla had imported 98 consignments of HSD and SKO during the period from May 1994 to December 1998 as a canalizing agency on behalf of himself as well as for M/s. Bharat Petroleum Corporation Limited, Kandla (BPCL for short) and M/s. Hindustan Petroleum Corporation Limited, Kandla (HPCL for short). The respective oil Companies filed Ex-bond Bills of Entry which were provisionally assessed. The quantity which was meant for IOCL was warehoused in the warehouse of the IOCL and quantity meant for BPCL and HPCL was warehoused in their respective warehouse / shore tanks for which each one of them were holding proper Customs Warehouse License. M/s. IOCL, BPCL and HPCL paid duty provisionally at the time of clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following order:- 1. All the provisional assessment of all the ex-bond bills of entry presented / filed by IOCL, BPCL and HPCL against 98 warehousing/into bond bills of entry filed / presented by IOCL as a canalizing agent, as indicated in the annexure enclosed to this order (the warehousing bills of entry are indicated vessel-wise as covered in respective 6 show cause notices earlier issued on this issue as indicated in Para 1 and 2 of this order), stand finalized in terms of Section 18 of the Customs Act, 1962, on the basis of actual shore tank receipt quantity and actual cost, freight and actual insurance incurred. The annexure also gives the break-up of the shore tank quantity and actual duty liability of IOCL, BPCL and HPCL and this differential duty should be paid by the respective companies within 10 days of receipt of this order. 2. The differential duty amounts already paid by IOCL, BPCL and HPCL over a period of time till date, as indicated in the annexure stand to be adjusted against the above duty liability. These 3 companies, IOCL, BPCL and HPCL only have to pay the balance differential duty as indicated in the summary sheet of the annexure, which is indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) has also supported the point of view with case law of Sterlite Industries India Limited reported in 2008 (223) ELT 633 (Tri. Chennai) as well as Hon ble Gujarat High Court order in Tax Appeal No. 1992/2010 filed by M/s. Goyal Traders etc. The appellants are before us against the above mentioned order-in-appeal dated 21.10.2013. 3. We have heard both the sides and perused the record of the appeal in detail. 4. It can be seen from the preceding paras that the only issue which needs to be addressed by us is whether the duty at the time of finalization of final assessment is to be paid on the basis of invoice value and the quantity indicated on the bills of lading or the quantity received by the importer/ appellants in their warehouse/ shore tanks. We find that the matter has been decided by the Hon ble Apex Court in the case of Mangalore Refinery Petrochem vs. CC, Mangalore 2015 (323) ELT 433 (SC) wherein the Hon ble Supreme Court had held as follows:- 14 . The Tribunal s judgment dated 6th February, 2006 gives several reasons 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 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 stage that the quantity of the goods imported is to be looked at for the purposes of valuation. Fourthly, the basis of the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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