TMI Blog2000 (9) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... und that, in respect of each consignment, the quantity of crude oil discharged as per the vessel's US Report was in excess of the quantity specified in the CI Certificate. Show cause notice (SCN) was issued to the respondents to show cause why the provisional assessment should not be finalised on the basis of the quantity specified in the US Report taken at the time of discharge of cargo, following the guidelines laid down by the Bombay High Court in its judgment dated 17-7-1986 in Writ Petition No. 1354/84. The respondents, in their reply, contested the calculations based on the US Report and contended that the quantity specified in the CI Certificate was more accurate. The Assistant Collector of Customs finalised assessment on the basis of quantity specified in the US Report following the aforesaid guidelines of the Bombay High Court and confirmed demand of differential duty to the extent of Rs. 1,16,83,917.00 in finalisation of 32 into-bond Bills of Entry covering imports of crude oil for the period June 1992 to December 1992 and another demand of differential duty of Rs. 1,74,17,091.00 in finalisation of another set of into-bond Bills of Entry covering imports for the period Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e place of destination and formed part of the mass of goods in India. Chargeability to duty arose only at that point of time. The quantity of crude oil shown by the US Report, in the instant case, related to a point of time occurring prior to the actual unloading of the goods and hence it could not be the 'imported quantity'. Any assessment based on such quantity would be against the mandate of law. It should be the quantity of crude oil actually received in the shore tanks (by pumping from the ship) that should be the basis for determining the duty. That quantity was the one provided by the CI Certificate. Ld. Counsel, in this connection, relied on the decision of the Tribunal's West Zonal Bench [WZB] in the case of Commissioner of Customs v. HPCL - 2000 (121) E.L.T. 109 (Tribunal) [Order No. CI/2393/WZB/2000 dated 7-7-2000] and submitted that the issue was fully covered in favour of the respondents by the WZB's decision. In support of the said decision of the Tribunal, ld. Counsel also cited the Apex Court's judgments in the cases of Garden Silk Mills Ltd. v. Union of India [1999 (113) E.L.T. 358 (S.C.) = JT 1999 (7) SC 522], Union of India v. Apar Pvt. Ltd. [1999 (112) E.L.T. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge and clearance of liquid bulk cargo following the Bombay High Court's guidelines laid down in Shaw Wallace (supra). The WZB found that the High Court's decision in Shaw Wallace was not binding on M/s. HPCL and that P.N. No. 49/92 was not applicable to assessments. The Bench considered the Supreme Court's decisions in the cases of Garden Silk Mills (supra), Apar Pvt. Ltd (supra) and Kiran Spinning Mills (supra) and relied on the same for holding that it was the quantity of crude oil received in the shore tanks that should be taken as 'imported quantity' for the purpose of levy of duty. The ratio of the decision of WZB is contained in para (5) and (6) of its order extracted below :- In the light of the later judgments of the Supreme Court it"5. does not appear to us to be appropriate and correct to say that import has taken place as soon the goods have entered India. The Supreme Court considered the question as to when the import took place for purpose of assessment of duty in Garden Silk Mills Ltd Anr. v. UOI Ors. - JT 1999 (7) SC 522, UOI v. Apar Pvt. Ltd. - 1999 (112) E.L.T. 3 and Kiran Spinning Mills v. CC - 1999 (113) E.L.T. 753. In Garden Silk Mills v. UOI the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered to have crossed the customs barrier only when they were pumped into the shore tanks. That being the taxable event, it is that quantity of goods, which are liable to duty." 7.The Bench had also taken note of the decision (on identical issue) of the SZB of the Tribunal in the case of Cochin Refineries (supra), but found that it was not good law after the Apex Court's decision in Apar Pvt. Ltd. (supra). 8.On a careful consideration of the Supreme Court's judgments in the aforesaid cases as well as the decisions of the Bombay High Court and the Tribunal relied on by the Revenue, we have found ourselves in full agreement with the conclusion reached by the WZB in Commissioner v. HPCL (supra). The ratio of the WZB's decision is squarely applicable to the instant case, wherein the facts are similar and the issue is identical. We follow that ratio and hold that the "imported quantity" of crude oil was the quantity as determined by dip measurement in the shore tanks and therefore the assessment of duty was liable to be finalised on the basis of such quantity revealed by the CI certificate. The order of the Collector (Appeals) has to be sustained. 9.As rightly observed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
