2018 (11) TMI 1475 - AT - Customs

Demand of Additional Duty of Customs - Section 116 of the Finance Act, 1999 - classification of MGO - Held that - Admittedly, both HSD and MGO are used only as fuel for compression engine either in automatic vehicles or marine vessels and in terms of technical specification for diesel fuel, there is not much variation between either of them. Further, in the HSN under Chapter Heading 2710 petroleum oils and oils obtained from bituminous minerals are classified into 7 categories and further, under Indian Customs Tariff which follows HSN classification, MGO classified in the HSN are sub-divided into three categories viz., 2710 19 20 Aviation Turbine Fuel, 2710 1930 High Speed Diesel and 2710 19 40 Light Diesel Oil (LDO). This clearly and categorically establishes the fact that HSD is nothing but MGO which is generally termed as diesel in India. The assessee has nowhere disputed the classification of the fuel in dispute under Tariff Heading 2710 19 30. Appeal allowed - decided in favor of Revenue.

Summary

Issues:
1. Interpretation of Customs Duties exemption under Notification No. 21/2002-Cus.
2. Classification of Marine Gas Oil (MGO) under Tariff Item No. 2710 19 30.
3. Distinction between High Speed Diesel (HSD) and MGO for Customs Duty purposes.
4. Applicability of Additional Duty of Customs under Section 116 of the Finance Act, 1999.
5. Consideration of technical specifications and industry practices in determining classification.

Analysis:
1. The case involved the appellant's import of a vessel with consumables like Marine Gas Oil (MGO) and other items, seeking full exemption from Customs Duties under Notification No. 21/2002-Cus. A Show Cause Notice proposed a demand for Additional Duty of Customs due to the classification of MGO under Tariff Item No. 2710 19 30.

2. The adjudication order confirmed the demand, but the Commissioner (Appeals) allowed the appeal, stating that the imported goods were MGO, not High Speed Diesel (HSD), and thus not subject to Additional Duty. The Commissioner was influenced by the import invoice and technical specifications submitted by the assessee to differentiate MGO from HSD.

3. During the hearing, it was argued that HSD and MGO are essentially the same, both being used as fuel for compression engines in vehicles and vessels. The HSN classification and Indian Customs Tariff further supported the argument that HSD falls under MGO, which is commonly known as diesel in India.

4. The clarification from Indian Oil Corporation Ltd. regarding the interchangeability of HSD and MGO based on the vessel's application was considered. The decision of the Hon'ble Apex Court in M/s. Dunlop India Ltd. Vs. UOI was cited to emphasize interpreting articles in fiscal statutes based on trade and commerce understanding rather than technical tests.

5. Previous CESTAT decisions and industry practices were referenced to support the argument that MGO, Light Diesel Oil (LDO), and HSD are considered the same for the purpose of extending benefits under Notification 21/2002. Consequently, the Department's appeal was allowed, restoring the Original adjudicating authority's order, with the penalty being waived due to the litigation involved. The Cross Objection filed by the assessee was dismissed.