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TMI Blog2008 (2) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (T) [Order per : S.L. Peeran, Member (J) (Oral)]. - In all these three stay applications, Revenue has proceeded to recover differential duty and confirmed the same in the impugned order. The appellants had imported Superior Kerosene Oil (SKO) in bulk through new Mangalore Port from March 1999 onwards till November 2003 by 53 vessels. The allegation is that they have imported SKO and Government by Notification No. 24/2003 dated 25-11-2003 had withdrawn the exemption. The appellant's submission is that during the period, the Bills of Entry had been kept under provisional assessment and after finalisation they were eligible for refund of excess duty paid by them. Revenue has proceeded to confirm demands on the ground of demurrage ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it was clarified that "the earlier circular should not be construed as authorizing the exclusion of any ship demurrage charges paid which are required to be included in the assessable value of the goods under Section 14 of the Customs Act, 1962 by virtue of Rule 9 (2) of the Customs (Valuation) Rules, 1988." It was stated in the above said circular that the earlier letter dated 14-8-1991 was issued without specifically examining the implications of Rule 9 of the Customs Valuation Rules or the GATT Valuation Rules. In terms of the GATT Valuation Rules, cost of transportation has to be included in the assessable value of the goods, if it had not been included. The view taken is when there is demurrage and then the demurrage should be ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, wherein, it was conveyed that in light of the decision of the Board to file review petition before the Supreme Court of India, in the case of M/s. Indian Oil Corporation [2004 (165) E.L.T. 257 (S.C.)], all importations prior to 2-3-2001 may be kept provisional. 2. Now, in view of the Department's Review Petition in the case of Commissioner of Customs, Calcutta v. Indian Oil Coloration Limited being dismissed by the Hon'ble Supreme Court [2005 (186) E.L.T. A119 (S.C.)] all pending provisional assessments in respect of importation prior to 2-3-2001 may be finalized accordingly. 3. With regard to period after 2-3-2001, the matter is under consideration and clarification shall be issued in due course. 4 . Receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Valuation Rules. In any case, since the amendment is only of recent origin, for the relevant period we cannot hold demurrage would be includable in view of the Supreme Court's decision which affirmed the Tribunal decision in the IOC case. Even though the Supreme Court had not gone into the merit of the case, it had not set aside the finding of the Tribunal in the IOC case. In fact the decision of the Tribunal has been affirmed. In view of this fact, we have to categorically hold that the decision of the Tribunal holds the field during the relevant period. The definite clarification of the Board in the matter was issued only on September 26, 2006. This Circular cannot be given retrospective effect. In view of the above observation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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