2016 (11) TMI 222 - AT - Customs

Refund claim - Refund of excess paid Customs duty on short quantity received between ship ullage and quantity received in shore tanks - Held that - In an identical matter relating to Ruchi infrastructure Limited, the Hon ble CESTAT, Bangalore 2007 (11) TMI 210 - CESTAT, BANGALORE held that It is now well settled that the assessment has to be done on the basis of the shore tank quantity not on basis of ship ullage report. To the effect that the shore tank receipts are alone to be considered and not the ship ullage reports, CBEC also has issued Circular dated 27.12.2002 and 26.07.2016 clarifying that in case of all bulk liquid cargo imports, shore tank receipt quantity, i.e. dip measurement in tanks on shore should be taken on basis for levy of customs duty. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Refund of excess paid customs duty on short quantity received between ship ullage and quantity received in shore tanks.
2. Time limitation for filing refund claims.
3. Demand of duty based on DIP measurement or ullage report.
4. Application of the principle of unjust enrichment.

Analysis:
1. The case involved a dispute regarding the refund of excess paid customs duty on the short quantity received between ship ullage and quantity received in shore tanks. The adjudicating authority rejected the refund claims citing reasons such as finalization of assessments, time limitation under Section 27 of the Customs Act, and failure to provide necessary documents. The Commissioner (Appeals) set aside the order-in-appeal, emphasizing that the refund claims were not time-barred and invoking the decision of the Hon'ble Supreme Court in a related matter.

2. The issue of time limitation for filing refund claims was a crucial point of contention. The department argued that the refund claims were filed before the finalization of the Bills of Entry, citing a Supreme Court decision that refund claims cannot be maintained unless the assessment order is challenged. However, the Commissioner (Appeals) disagreed, stating that the claims were not time-barred and could be challenged even at the provisional stage.

3. Another significant issue was the demand of duty based on DIP measurement or ullage report. The department contended that the quantification of cargo as per ship ullage report was proper and legal until a specific date mentioned in a circular. However, the respondent argued that duty should be demanded only on DIP measurement, referencing a Supreme Court decision and a subsequent circular issued by the CBEC rescinding earlier circulars.

4. The principle of unjust enrichment was also raised, with the respondent asserting that it did not apply as the duty was discharged on ship ullage quantity, and there was no passing on the incidence of duty due to the non-existent short receipted quantity. The Tribunal found merit in the respondent's contentions, citing a similar case and upholding the decision that customs duty should be levied based on onshore tank receipt cargo, not the ship ullage report.

Overall, the Tribunal dismissed the department's appeal, concluding that the appeal lacked merit based on the arguments presented and the precedents established in similar cases and relevant legal provisions.