2009 (3) TMI 733 - AT - Customs

Summary

Issues involved: Determination of excess amount collected in the guise of CVD from customers compared to what was paid to the department during importation of Naptha, and the applicability of Section 28B of the Customs Act, 1962.

Details of the Judgment:

Issue 1: Excess Collection of CVD
The appellant argued that they did not collect excess duty from customers, citing that the invoices showed the duty element under the heading Customs Duty/Excise Duty, which included various Customs duties and not just CVD. They referred to previous decisions where relief was granted based on similar grounds. However, the Revenue contended that the appellants indeed collected excess CVD by not correlating the actual CVD paid at the time of importation with the assessable value of the Naptha sold to customers. The Revenue highlighted discrepancies in the billing procedure followed by the appellant compared to the correct practice at another terminal. The Tribunal analyzed the arguments and previous decisions, concluding that the appellant's claim of collecting only total Customs duty and not just CVD was not accepted due to the methodology adopted by the appellant.

Issue 2: Compliance with Section 28B of Customs Act
The Tribunal reviewed various decisions cited by the appellant, noting that they did not support the appellant's case as excess duty collected was not credited to the Oil Pool Account as required. The Tribunal emphasized that the appellant's case did not align with the provisions of Section 28B of the Customs Act. The appellant's reliance on previous cases where demands were dropped due to crediting excess duty to the Oil Pool Account was deemed irrelevant in this context.

Conclusion:
The Tribunal found discrepancies in the appellant's collection of Customs duty, indicating a short recovery of duty in certain instances. The lack of detailed data on duty recovery tanker-wise raised uncertainties about the appellant's intention to collect only CVD. The matter was remanded to the original adjudicating authority for further examination, including verification of data and reconsideration of the duty demand for the subsequent period. The appellants were granted an opportunity to present their case during the fresh proceedings.

Final Decision:
The case was remanded to the original adjudicating authority for a fresh decision in light of the Tribunal's observations, with the appellants given the chance to present their case again.