2011 (7) TMI 843 - AT - Customs

Refund - Conflicting decision - Learned Joint CDR submitted that there is no provision in the Customs Act for non-charging of customs duty in respect of quantity short found, as ascertained on the basis of removal from shore tank - It is to be noted that the quantity mentioned in the bill of lading is what is claimed to have been supplied by the foreign based exporter. Ullage survey conducted by the independent surveyors serve important purposes, as they are conducted in the presence of representative of the supplier - Held that the ullage survey report was taken in presence of representatives of importer, foreign supplier, master of the vessel and customs. We find that the respondents filed into Bond Bills of Entry for quantities mentioned in the ullage report and the assessment was made finally - This is a case of shortage of goods found out of undisputed quantity of bonded goods found short at the time of ex-bond clearance. Regarding conflicting decisions - CC & CE, Visakhapatnam v. Ruchi Infrastructure Ltd. 2007 (11) TMI 210 - CESTAT, BANGALORE and Mangalore Refinery & Petrochem Ltd. v. CC, Mangalore reported in 2006 (2) TMI 518 - CESTAT, BANGALORE - held that - There is no conflict in the decisions.

Summary

Issues:
Assessment based on Ship Ullage Survey reports vs. Shore-tank receipts; Provisional assessments and duty payment on short landed goods; Refund of duty paid on short landed goods; Conflict in judgments by Co-ordinate Benches; Method of assessing bulk liquid cargo; Customs duty payment based on transaction value; Ocean loss deduction for customs duty; Acceptable method for finding unloaded quantity; Liability for difference in quantity; Exemption for short found goods; Penalty for difference in quantity; Use of ullage report for assessing bulk liquid cargo.

Assessment Method Dispute:
The case involved a dispute over the assessment method for imported edible oils - whether to base it on Ship Ullage Survey reports or Shore-tank receipts. The Referral Bench referred to conflicting judgments by Co-ordinate Benches, leading to the constitution of a Larger Bench. The appellant argued for Ship Ullage reports, while the department supported Shore-tank receipts, citing various legal precedents. The Tribunal analyzed the facts and found no conflict in the decisions, ultimately returning the matter for a decision on merits.

Provisional Assessments and Duty Payment:
The appellant imported edible oils, declared quantities based on Ullage survey reports, and cleared goods through Ex-bond Bills of Entry. A shortage was noticed, leading to duty payment on short landed goods. The original authority assessed based on Ullage reports, but the Commissioner (Appeals) allowed the appeal, leading to the department's appeal. The Tribunal noted differences in the facts of this case compared to others involving provisional assessments.

Refund of Duty on Short Landed Goods:
After paying duty on short landed goods, the appellant claimed a refund, which was rejected by the original authority but allowed by the Commissioner (Appeals). The Tribunal reviewed various legal decisions related to ocean loss deductions and customs duty payments based on transaction value, emphasizing the importance of specific facts in each case.

Conflict in Judgments and Method of Assessment:
The Tribunal examined conflicting judgments regarding the assessment of bulk liquid cargo, duty payment based on transaction value, and deductions for ocean loss. Various legal precedents were cited by both sides, highlighting the importance of factual distinctions in each case. The Tribunal clarified that the decisions in question were rendered in different factual contexts, leading to the conclusion that there was no conflict.

Liability for Difference in Quantity and Exemptions:
The advocate for the respondent cited legal decisions supporting the measurement of shore storage tanks to determine unloaded quantity in cases of short landing. The Tribunal reviewed cases involving liability for differences in quantity, exemptions for short found goods, and penalties under the Customs Act. The decisions were analyzed in light of specific factual circumstances to determine their applicability.

Conclusion:
After considering submissions from both sides and analyzing the legal precedents cited, the Tribunal found no conflict in the decisions regarding assessment methods and duty payments. The matter was returned to the Referral Bench for a decision on the merits of the case, emphasizing the importance of factual distinctions in legal judgments and their application to specific circumstances.