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TMI Blog2011 (7) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... importer, foreign supplier, master of the vessel and customs. We find that the respondents filed into Bond Bills of Entry for quantities mentioned in the ullage report and the assessment was made finally - This is a case of shortage of goods found out of undisputed quantity of bonded goods found short at the time of ex-bond clearance. Regarding conflicting decisions - CC & CE, Visakhapatnam v. Ruchi Infrastructure Ltd. 2007 (11) TMI 210 - CESTAT, BANGALORE and Mangalore Refinery & Petrochem Ltd. v. CC, Mangalore reported in 2006 (2) TMI 518 - CESTAT, BANGALORE - held that:- There is no conflict in the decisions. - C/209 & 223/2006 - 357/2011, - Dated:- 18-7-2011 - S/Shri S.S. Kang, P.G. Chacko, M. Veeraiyan, JJ. Shri R.K. Singla, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y all dated 24-6-2003 for clearance of 47.065 MTs which were assessed provisionally and the appellants paid the duty under protest. (d) Original authority vide order No. 12/2005 dated 27-5-2005 held that assessments have to be done on the basis of Ship Ullage Survey reports. (e) The appeal filed by the party, was allowed by the Commissioner (Appeals) with consequential relief vide Order No. 02/2006 dated 17-1-2006. Hence the department is in appeal. (Appeal No. C/223/2006) (f) Subsequently they claimed refund of duty paid on short landed goods. The original authority after granting personal hearing rejected the refund claim amounting to Rs. 39,31,952/- vide order RC No. 30/2004 dated 15-6-2005. (g) On appeal by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the transaction value has not been altered. The Ship Ullage reports having been prepared on the basis of dip readings taken by the independent surveyors in the presence of all concerned parties, the same require to be preferred to the shore tank receipts which are prepared by the respondents themselves. 5.2 The ld. Joint CDR relied on the following decisions in support of his contention : (a) Decision in the case of M/s. MRPL, 2006 (205) E.L.T. 753 (Tri.-Bang.) wherein the Tribunal has held that the customs duty has to be paid on the basis of transaction value. The Tribunal in the said case distinguished their earlier decision in the very same assessee s appeal, reported as 2002 (141) E.L.T. 247 (Tri.), wherein it was decided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at ocean loss was not permissible deduction and accordingly rejected the refund claimed by the party. (d) He further submits that the decision in the case of M/s. Ruchi Infrastructure Ltd., 2008 (224) E.L.T. 477 (Tri.-Bang), which has been relied on by the respondent, was given without reference to the decision of the Tribunal in the case of MRPL, 2006 (205) E.L.T. 753 (Tri.- Bang) and decision in the case of Liberty Oil Mills Ltd., 2006 (201) E.L.T. 290 (Tri.-Bang.). 6.1 Learned advocate for the respondent, referring to decision of the Tribunal in the case of National Organic Chemical Industries Ltd. reported in 2000 (126) E.L.T. 1072 submits that measurement of shore storage tank is the only acceptable method of finding out the unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. As already noted, the reference has been made on an understanding that the decision of the Tribunal in the case of Ruchi Infrastructure Ltd. and decision in the case of Mangalore Refinery Petrochem Ltd. are conflicting in nature. On a careful reading of the decision of the Tribunal in the case of Mangalore Refinery Petrochem Ltd., reported in 2006 (205) E.L.T. 753 (Tri.-Bang.) we find that the dispute in the said case was basically relating to difference in the quantity mentioned in the Bill of Lading and the quantity received in the shore tank. It also distinguished the decision of the Tribunal in the case of Mangalore Refinery Petrochemicals Ltd. reported in 2002 (141) E.L.T. 247 which was rendered in the context of goods subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible limit. (d) In the case of Godrej Industries Ltd., 2004 (171) E.L.T. 5 (Bom.), the dispute related to bulk liquid cargo directly discharged into the tank lorries. The Hon ble High Court held that the Customs authorities are not justified in issuing public notice/circular directing the authority to adopt the ullage report for assessing the bulk liquid cargo. (e) The decision of the Tribunal in the case of General Foods, 2008 (232) E.L.T. 750 merely followed the decision in the case Godrej Industries Ltd. cited supra and the detailed facts of the case are not evident from the order. (f) The decision of the Tribunal in the case of Acalmar Oils Fats Ltd., 2007 (215) E.L.T. 110 has been passed on an admit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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