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TMI Blog2004 (12) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... ble grade on concessional rate of duty under Notification No. 16/2000-Cus., dated 1-3-2000. During the lease period the appellants had imported a total quantity of 5123.206 MT of Crude Oil. However, it was found that they had utilized only 4989.421 MT of oil. Inasmuch as the entire oil was not utilized for refining, the benefit of concessional rate of Customs duty under Serial No. 30 of the said notification was sought to be denied to them in respect of the balance quantity of 133.785 MT. Accordingly, show cause notice dated 30-3-2001 was issued to them proposing to confirm differential duty to the tune of Rs. 5,85,826/- under the provisions of Section 28 of the Customs Act, 1962. The notice also proposed imposition of personal penalty. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed personal penalty of Rs. 1 lakh upon the appellants. On appeal against the above order, the appellate authority did not find favour with the appellant's pleas and rejected the appeal. Hence the present appeal. 4. Shri M.L. Grover, Ld. Advocate appearing for the appellants submitted that as per the survey report, dated 22-8-2000, the Crude Soyabean Oil delivered from shore tank was less than the quantity as shown in the Bill of Lading. The total shortages were to the extent of 73 MT. He submits that the authorities have not accepted the said shortage on the sole ground that the Customs was not endorsed the survey report and, as such, the quantity mentioned in the bill of entry has to be taken as the exact quantity imported into Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for payment of duty in respect of quantities sold by them and loss on account of transportation. The only dispute relates to the quantity of 73 MT of Crude Soyabean oil, which they claimed was less received by them from their foreign supplier. For the above proposition they have relied upon the survey report. 7. It is seen that the Tribunal in the case of Partap Steels Ltd. v. Commissioner of Customs, Chennai [2001 (135) E.L.T. 168 (Tri. - Chennai)] held that the issue of short receipt of the goods having not been raised at the time of taking delivery before the Customs authorities, remission of duty under Section 23 of the Customs Act cannot be entertained. The Tribunal further observed that if the appellants would have done so, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. - Bang.)] it was held that quantity of goods received at warehouse being lesser than the quantity stated in the invoice and no explanation for such difference being forwarded and the foreign supplier being paid as per the invoice quantity, Customs duty is to be levied on the value of the goods as imported at the place of import and not on value of goods as received in the factory. In the instant case also, when queried, Ld. Advocate fairly agreed that no claim has been put forward to the foreign supplier as regards the short quantity received by them and he has been paid for the full quantity. 10. The Tribunal in the case of Andhra Pradesh Civil Supplies Corporation Ltd. v. Collector of Customs [1992 (62) E.L.T. 188 (Tri.)], Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone provides for abatement of duty and it is necessary for the importer to prove to the satisfaction of the proper officer that the goods at the time of clearance was chargeable to a lower duty for anyone of the reasons contained in Section 22. The Court further observe that it may be open to the buyer to realize from the seller such damages as he would in law be entitled to. That claim for damages cannot have any bearing to the assessment at the time of clearance. 12. By applying the ratio of the above decisions and the facts and circumstances of the case, we are of the view that there is no infirmity in the order of the authorities below. Admittedly, the survey was got done in the absence of the Customs Officers and without their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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