2017 (1) TMI 1171 - AT - Customs

Advance Licence Scheme - DFIA scheme - Levy of duty on goods actually imported Appellant imported crude oil which was said to have escaped payment of full customs duty - whether quantity shown in the Bill of Lading of the quantity actually received in the shore tanks should be the basis for payment of customs duty? - Held that - the matter is fully settled by the Hon ble Apex court in the case Mangalore Refinery & Petrochemicals Ltd vs CCE, Mangalore 2015 (9) TMI 245 - SUPREME COURT , wherein it has been unequivocally held that the quantity of crude oil actually received in to a shore tank in a port in India should alone be the basis for payment of custom duty - demand set aside - appeal allowed. Whether the appellant is required to pay the National Calamity Contingent duty (NCCD) and cess thereon even though they have utilised advance licence for the import? - Held that - the Hon High Court of Gauhati in the case of CCE, Dibrugadh Vs Prag Bosimi synthetics ltd., 2013 (11) TMI 487 - GAUHATI HIGH COURT has answered this issue in the affirmative against the appellant and held that the general exemption has absolutely no reference to NCC duty which is levied as a surcharge under the provisions of the Finance Act, 2001 - the impugned order, rejecting the refund claim of ₹ 4,23,30,927.46/- does not call for any interference - appeal dismissed. Appeal disposed off - decided partly in favor of appellant.

Summary

Issues Involved:
1. Calculation of customs duty based on quantity shown in Bill of Lading vs. actual quantity received in shore tanks.
2. Liability to pay National Calamity Contingent Duty (NCCD) and cess on imports despite utilizing advance licenses.

Analysis:

Issue 1: Calculation of Customs Duty
The appellant, engaged in refining crude petroleum and exporting finished products, contested the assessment by the department based on circulars issued by CBEC. The primary contention was the discrepancy between the quantity shown in the Bill of Lading and the actual quantity received in shore tanks. The appellant filed a refund claim, arguing that customs duty should be computed based on the received quantity. The Tribunal referred to the Apex court's decision in a similar case, emphasizing that duty should be levied on the actual quantity received in shore tanks. Following this precedent, the Tribunal held the demand based on the Bill of Lading quantity as unsustainable and set it aside, providing consequential reliefs as per law.

Issue 2: Liability for NCCD and Cess
Regarding the liability to pay NCCD and cess despite utilizing advance licenses, the Tribunal cited a High Court judgment affirming such liability. Even though the judgment pertained to excise matters, its applicability to customs issues was acknowledged. Consequently, the Tribunal dismissed the refund claim related to NCCD. The appeal on this issue was rejected based on the established legal precedent.

Individual Appeal Analysis:
- Appeal No. C/794/2007: Allowed in favor of the appellant concerning the basis for customs duty payment, with consequential reliefs.
- Appeal No. C/795/2007: Partially allowed, setting aside the demand for customs duty based on Bill of Lading quantity and dismissing the appeal regarding NCCD liability.
- Appeal No. C/796/2007: Dismissed concerning the liability for NCCD and cess despite utilizing advance licenses.

In conclusion, the Tribunal's judgment clarified the basis for customs duty calculation and affirmed the liability for NCCD and cess, providing a detailed analysis of each issue raised in the appeals. The decision was based on legal precedents and applicable judgments, ensuring a fair and comprehensive resolution of the disputes presented before the Tribunal.