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Issues Involved:
1. Whether customs duty on crude oil imports is assessable based on the quantity determined by the Ship's ullage survey report or the shore-tank receipts. 2. Validity and legal sustainability of demands raised u/s 28(2) of the Customs Act, 1962 as short-levy. Summary: Issue 1: Basis for Assessing Customs Duty on Crude Oil Imports The appellant, a manufacturer of petroleum products, imports crude oil and stores it in bonded warehouses. The Customs authorities at Mangalore insisted on using the quantity from the 'ship's ullage Survey Report' for duty assessment, rejecting the appellant's provisional Bills of Entry based on shore-tank quantities. The Commissioner (Appeals) upheld this approach, citing the Bombay High Court's decision in Shaw Wallace Company Limited v. Assistant Commissioner of Customs, 1986 (25) E.L.T. 948, and the Tribunal's decision in Cochin Refineries Limited v. Commissioner of Customs, Cochin, 1999 (105) E.L.T. 108. The Tribunal concluded that the quantity for duty assessment should be based on the ullage Survey Report, aligning with the responsibility of the ship's master and the importer. However, the appellant argued that the Supreme Court's judgment in 1999 (112) E.L.T. 3 (S.C.) overruled the Bombay High Court's decision, focusing on the crucial date for the rate of duty rather than the quantity determination. The Tribunal found that the ullage survey report is the initial report available and is used for payment to suppliers based on the Bill of Lading. The Tribunal held that the quantity for Sections 116 and 12 should not differ, as it would create a gap in responsibility between the ship's master and the importer. Issue 2: Validity of Demands Raised u/s 28(2) of the Customs Act The Tribunal examined the Supreme Court's decision in Kiran Spinning Mills, 1999 (113) E.L.T. 753 (S.C.), which stated that duty should be assessed on the quantity removed from the warehouse on the date of physical removal. The Tribunal concluded that the quantity shown on the ex-bond Bill of Entry should be the actual quantity removed from the shore-tank, not the hypothetical quantity from the 'ship's ullage reports'. The Tribunal also referenced the Supreme Court's decision in Garden Silk Mills Ltd., 1999 (113) E.L.T. 358 (S.C.), which clarified that the import of goods is completed when they become part of the mass of goods within the country. The Tribunal rejected the reliance on the Shaw Wallace case for determining the quantity for assessment u/s 68(1)(a), as it pertains to liabilities under Section 116 on the ship's master or agent, not the importer. The Tribunal found no justification for taxing quantities based on ullage reports, which do not reflect the actual imported quantities. Final Order: The Tribunal set aside the impugned order of the Commissioner (Appeals) and allowed the appeal, directing that only the actual quantity removed from the shore-tank should be considered for duty assessment of crude oil removed from bonded shore-tanks.
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