2013 (11) TMI 338 - AT - Customs

Valuation of goods - inclusion of demurrage in the assessable value of the goods - Held that - Both sides have also referred to certain relevant circulars of CBEC. A circular dated 2.3.2001 clarified the issue in favour of importers. A subsequent circular required field formations to defer the issue till final clarification. This final clarification was expressed in circular dated 26.9.2006 and the same was to the effect that demurrage was to be included in the assessable value. The subject import in the instant case was in the year 2004, at a time when the board purported to keep all the provisional assessments of the period prior to 2001 pending till final clarification on the issue. In other words, in the present case, the appellant cannot claim the benefit of the beneficial circular of 2001 - Prima facie case not in favour of assessee - Stay granted partly.

Summary

Issues:
1. Inclusion of demurrage in the assessable value of imported goods.
2. Applicability of conflicting views by different benches of the Tribunal.
3. Interpretation of relevant circulars of CBEC regarding demurrage.

Analysis:

Issue 1: Inclusion of demurrage in the assessable value of imported goods
The judgment addresses the issue of whether demurrage should be included in the assessable value of imported goods. It notes conflicting views expressed by different benches of the Tribunal on this matter. The case of Shine Petroleum Pvt. Ltd. held demurrage as not includable, while a subsequent circular clarified that demurrage was to be included in the assessable value. The appellant in this case imported goods in 2004, and due to the board's decision to keep provisional assessments prior to 2001 pending, the appellant cannot claim the benefit of the favorable circular of 2001.

Issue 2: Applicability of conflicting views by different benches of the Tribunal
The judgment highlights the conflicting views of different benches of the Tribunal on the includability of demurrage in the assessable value of imported goods. It mentions the case of Commissioner vs. M/s. Grasim Industries Ltd., where a similar issue was referred to a larger bench due to disagreement with the Shine Petroleum case. The Tribunal takes into account these differing opinions while making its decision on the present case.

Issue 3: Interpretation of relevant circulars of CBEC regarding demurrage
The judgment delves into the interpretation of relevant circulars issued by CBEC regarding the inclusion of demurrage in the assessable value of imported goods. It notes a circular from 2001 favoring importers, followed by a subsequent circular requiring field formations to defer the issue until final clarification. The final clarification in a circular dated 26.9.2006 stated that demurrage should be included in the assessable value. The Tribunal considers these circulars in conjunction with the specific circumstances of the appellant's import in 2004 to determine the applicability of the circulars to the present case.

In conclusion, the judgment directs the appellant to pre-deposit 25% of the duty amount within a specified timeline, subject to compliance, to receive a waiver and stay in respect of the remaining dues. The decision is based on a thorough analysis of the conflicting views of different benches, interpretation of relevant circulars, and the specific circumstances of the appellant's import.