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TMI Blog2016 (8) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the imports for the period prior to CBEC Circular dated 27.12.2002 also because it is not disputed that movement of cargo through pipeline under the supervision of independent surveyor has not changed during the periods prior/post CBEC Circular dated 27.12.2002. On the issue of excess quantity of nearly 2000 MT of Ammonia in the shore tank of the appellant it is observed that the same has been explained to be due to 2000 MT of Ammonia received from M/s.EID Parry (India) Ltd. which was a replacement of appellant s Ammonia quantity diverted from Haldia due to technical problems and stored in the tank of M/s. EID Parry. There is no evidence on record that appellant on any occasion has imported Ammonia in excess of Ullage repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Tanmoy Chakraborty (Advocate) appeared on behalf of the appellant. Learned Advocate Shri Ravi Raghavan argued that Appellant was periodically importing Phosphoric acid and claiming concession exemption under Notification No. 166/76-CUS dated 02.08.1976 (upto 27.08.1992) and full exemption under Notification No.265/92-CUS dated 27.08.1992 for the manufacture of fertilizers. That similarly Ammonia imported was chargeable to NIL rate of duty under various Notifications issued from time to time. 2.1 That during the period 01.01.1999 to 31.03.2003 appellant imported Phosphoric acid and Ammonia and cleared the same at concessional/NIL rate of duty for the manufacture of fertilizers. That Phosphoric acid and Ammonia imported was discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing procedure specified in para-6 of this Circular and movement of imported goods through pipeline to the off shore tanks of the appellant take place in the presence of customs and same independent surveyors, who were surveying earlier, whose reports are now accepted by the department for the shortages after 31.03.2003. That Hon ble Apex Court in Mangalore Refinery Petrochemicals Ltd. v. CC, Mangalore [2015 (323) ELT 433 (SC)] held that valuation of goods under Section 14(2) of the Customs Act, 1962 should be done on the quantity pumped into the shore tanks and not as per ship s ullage survey report. That after receipt of this judgement CBEC vide Circular No.34/2016-CUSTOMS dated 26.06.2016, issued from F.No.465/01/2014-CUS-V by rescindin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Ullage Report/manifest was cleared on payment of concessional rate of duty/NIL rate during the relevant period. That once the entire ullage quantity was being taken delivery on payment of duty then appellant cannot take a plea that lesser quantity of Phosphoric acid/Ammonia was received in the tanks. That CBEC Circular dated 27.12.2002 cannot be made applicable for the prior period as the movement from vessel to the shore tank of the appellant, after payment of duty, was not done under the supervision of customs officer as required under para 6 of CBEC Circular dated 27.12.2002. Learned Spl.Counsel read out para 6 of the said Circular as follows: 6. Another issue of relevance pertains to assessment of bulk liquid cargo which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating authority. 4. Heard both sides and perused the case records. The main issue involved in these proceedings is whether duty on imported goods should be based on the Ullage Report quantity made by the surveyors or the same should be as per quantity of cargo received into appellant s off shore unbonded tanks. On principles Revenue has no objection that duty is required to be paid on the quantity received in the off shore tanks of the appellant. The objection of the department is that for the period before CBEC Circular dated 27.12.2002 movement of cargo from the vessel s ullage to the storage tank of the appellant, through a pipeline, was not done under the customs supervision as per prescribed procedure. 4.1 It was argued by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2 On the issue of excess quantity of nearly 2000 MT of Ammonia in the shore tank of the appellant it is observed that the same has been explained to be due to 2000 MT of Ammonia received from M/s.EID Parry (India) Ltd. which was a replacement of appellant s Ammonia quantity diverted from Haldia due to technical problems and stored in the tank of M/s. EID Parry. There is no evidence on record that appellant on any occasion has imported Ammonia in excess of Ullage report quantity which is unmanifested. Revenue thus cannot ask for duty on a quantity in excess of Ullage Report quantity/quantity declared in the Bills of entry based on presumptions in the absence of any evidence to that effect. Accordingly, the argument taken by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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