2013 (11) TMI 392 - AT - Customs

Import of LPG by filing into-bond bill of entry - Valuation of cleared of LPG cleared on ex-bond bill of entry - Smaller quantities were cleared - Waiver of pre depsoit - Held that - It appears to us that it is not in dispute that, during the material period, duty had to be paid on the LPG ad valorem. If that be so, the assessable value of the goods was liable to be determined and, in the event of short-payment, differential duty was liable to be demanded under Section 28 of the Act. In the instant case, however, there is no reference to transaction value or assessable value in any of the show-cause notices, both of which proceeded to recover duty on the quantity of the liquid cargo imported but not reflected in the ex-bond bills of entry. In other words, the case is one, prima facie, of non-accountal of imported goods and the proper provision of law to be invoked by the Revenue was Section 72 of the Customs Act. The show-cause notices did not invoke this provision of law which was apparently squarely applicable to the facts of this case. In this view of the matter, we are of the view that waiver of pre-deposit and stay of recovery should be allowed in this case even though the assessee also appears to have overlooked the applicable provision of law. Therefore, proceeding on first principles, we grant waiver and stay as prayed for - Decided in favour of assessee.

Summary

Issues:
1. Waiver of pre-deposit and stay of recovery sought by the appellant regarding customs duty on imported LPG.
2. Interpretation of provisions under the Customs Act for duty payment based on assessable value.
3. Application of Section 28 vs. Section 72 of the Customs Act in the case.
4. Comparison of cited cases MRPL vs. CCE, Bangalore and Commissioner vs. HPCL with the present case.

Analysis:
1. The appellant filed an application seeking waiver of pre-deposit and stay of recovery concerning customs duty on LPG imported during 1998-99 and 1999-2000. The appellant imported LPG, warehoused it based on ship's ullage reports, and cleared smaller quantities paying duty on the actual quantities removed. Two show-cause notices were issued, alleging duty payment discrepancies. The adjudication confirmed the demand under Section 28 of the Customs Act, which was upheld by the Commissioner (Appeals).

2. The learned counsel for the appellant cited MRPL vs. CCE, Bangalore and Commissioner vs. HPCL cases, arguing that duty payment should be based on assessable value. It was noted that duty during the material period had to be paid ad valorem, and any short-payment required recovery of differential duty under Section 28. However, the show-cause notices did not refer to transaction value or assessable value but focused on recovering duty on unaccounted imported goods. It was deemed that the appropriate provision to be invoked by the Revenue should have been Section 72 of the Customs Act, which was not done in this case.

3. The comparison of cited cases with the present situation revealed that the facts of the instant case did not align with the cases referenced by the appellant. Despite the appellant's oversight of the applicable provision of law, it was concluded that waiver of pre-deposit and stay of recovery should be granted. The Tribunal decided to allow the waiver and stay as requested, emphasizing the need to apply the correct legal provisions in such matters.

4. In conclusion, the Tribunal granted the appellant's request for waiver of pre-deposit and stay of recovery, highlighting the importance of invoking the appropriate legal provisions for duty recovery under the Customs Act. The decision underscored the necessity of aligning legal interpretations with the specific circumstances of each case to ensure fair and just outcomes in customs duty disputes.