1999 (8) TMI 96 - HC - Customs

Summary

Issues:
1. Challenge to the constitutionality of Public Notice No. 3/94
2. Assessment of customs duty based on Ullage Survey Report
3. Quashing of Public Notice No. 3/94 and the order dated 3-6-1999

Analysis:
1. The petitioners challenged the constitutionality of Public Notice No. 3/94 dated 10-3-1994, which laid down the procedure for determining duty liability in liquid cargo cases. The notice stated that duty liability would be based on the Ullage Report prepared before discharging the liquid cargo from the vessel. The petitioners sought a declaration that the notice was unconstitutional.

2. The dispute arose from the assessment of customs duty on crude oil imported by the petitioner company. The Customs Authorities assessed the quantity of crude oil based on the Ullage Survey Report prepared at the port of destination, while the petitioner filed Bills of Entry based on the quantity measured at the shore tank. The difference in duty amounts led to a demand for recovery from the petitioner, confirmed by an order dated 3-6-1999.

3. The petitioners also sought to quash both Public Notice No. 3/94 and the order dated 3-6-1999. The respondents argued that the order was appealable, and the petitioners could raise their contentions before the Appellate Authority. The petitioners contended that the decision in Cochin Refineries Ltd. v. Commissioner of Customs supported their position that duty liability arises based on the Ullage Survey Report.

4. The High Court noted conflicting views from different High Courts on whether the quantity imported should be measured after landing on the landmass (shore tank measurement) or based on the Ullage report prepared before cargo discharge. The Tribunal's decision in Cochin Refineries case followed the Bombay High Court's view, but the Supreme Court later set aside the Bombay High Court's decision, rendering the Tribunal's basis for decision invalid.

5. The High Court held that the petitioners could appeal the order dated 3-6-1999 and present their contentions independently, not bound by the previous Tribunal decision. The Court granted liberty to the petitioners to file an appeal within a specified timeframe, ensuring no recovery would take place until the appeal period elapsed.

6. In conclusion, the High Court disposed of the petition, emphasizing the availability of the remedy of appeal for the petitioners to challenge the order and public notice in question. The Court clarified that the decision in Cochin Refineries case was no longer binding due to the Supreme Court's ruling, allowing the petitioners to pursue their contentions through the appellate process.