2008 (2) TMI 153 - AT - Customs

Appellants had imported Superior Kerosene Oil (SKO) - Revenue has proceeded to confirm demands on the ground of demurrage charges which was required to have been added in the assessable value - we cannot hold demurrage would be includable in view of the Supreme Court s decision which affirmed the Tribunal decision in the IOC case - In view of this Bench decision in assessee s favour in IOC case, we allow the stay applications and grant waiver of pre-deposit and stay its recovery

Summary

Issues:
1. Recovery of differential duty on imported Superior Kerosene Oil (SKO) due to withdrawal of exemption.
2. Inclusion of demurrage charges in the assessable value of imported goods.
3. Applicability of various circulars and amendments to Customs Valuation Rules.

Analysis:
1. The appellants imported SKO from March 1999 to November 2003, and the Revenue confirmed demands for differential duty after withdrawing the exemption via Notification No. 24/2003. The appellants argued that the Bills of Entry were provisionally assessed and they were eligible for a refund of excess duty paid. The Tribunal considered the conflicting views on the recovery of demurrage charges.

2. The learned Sr. Counsel referenced a previous judgment where it was held that Revenue cannot recover demurrage charges. However, the learned SDR relied on a different judgment to support the inclusion of demurrage charges in the assessable value. The Tribunal examined various circulars issued by the Board over the years, highlighting the evolution of the stance on demurrage charges and their inclusion in the assessable value.

3. The Tribunal analyzed the Customs Valuation Rules amendments and circulars issued by the Board, emphasizing the importance of the Supreme Court's decision in the IOC case. The Tribunal noted the conflicting views on the includability of demurrage charges in the assessable value and ultimately relied on the Tribunal's decision affirmed by the Supreme Court. The Tribunal concluded that the benefit of the IOC case decision should be extended to the appellants during the relevant period, setting aside the impugned orders and allowing the appeals with consequential relief.

4. Considering the settled issue and the Tribunal's decision in favor of the appellants, the stay applications were allowed, granting a waiver of pre-deposit and stay on recovery. The Tribunal agreed to an early hearing due to the significant amounts involved in the cases and scheduled the appeals for final hearing. The Tribunal emphasized that there should be no recovery even after the expiry of 180 days, in line with the Apex Court's judgment on the matter.