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TMI Blog2008 (1) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... eal filed by the Revenue against the Order in Appeal No. 26/2005 dated 31.3.2005 of the Commissioner of Central Excise (Appeals). M/s Aurofood Private Ltd, Pondicherry (APL) had imported crude sunflower oil during August 2000 to February 2001 and availed concessional rate of duty in terms of Notification No. 16/2000-Cus dated 1/3/2000. The concessional rate of duty was extended subject to the condition that the importer followed the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 [IGCRD (Rules)]. Following due process of law, the Assistant Commissioner of Central Excise, Pondicherry-I Division demanded an amount of Rs.80,108/- towards differential duty on 22.97 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RD) Rules, 1996. He reiterates the grounds of the appeal and submits that in the subject case, the demand was for the differential duty on the quantity delivered to the respondents at the port less the quantity actually received at the factory. The Commissioner of Central Excise (Appeals) had applied the ratio of the two decisions of the Tribunal both of which were different on facts. The case law relied upon dealt with the issue as to whether the quantity received in the shore tank or the quantity as per the ullage report is the basis for assessment. He pleaded that the order of the original authority deserved to be restored. 3. The Ld. Counsel for the appellants relies on the Tribunal's decision in Agarwal Industries Ltd. (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT A280 (S.C). The Apex Court had upheld the CEGAT orders in the case of M/s. HPCL and NOCIL ruling that Customs duty should be demanded on the quantity pumped into the shore tanks. Paras 6 7 of the CBEC Circular read as follows: "6. Another issue of relevance pertains to assessment of bulk liquid cargo which is not discharged through regular pipelines and cleared directly on payment of duty under a white Bill of Entry, i.e., without the cargo being warehoused in a shore tank. The point raised is how to determine the quantity in such cases. It needs to be mentioned here that though the CEGAT order in case of M/s HPCL relates to a situation of bonded tanks in a warehousing scenario, it would nevertheless be applicable in a situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that in terms of the Board's Circular the Adjudicating authority is required to determine the quantity on which the duty can be charged in this case, i.e., quantity of shore tank receipt at Hyderabad". In KTV Oil Fats Ltd. and another (supra), the Tribunal made the following observations: "Ld. Commissioner (Appeals) has followed the Board's Circular No.96/2002-Cus dated 27.12.2002. The para 2 and 4 of the Board's Circular refer to situations and decisions wherein the transfer of cargo has taken place from tankers into shore tank and therefore the ground of the department that the circular has referred and is applicable only to such cases of transfer through pipelines is not correct. The last portion of para 4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (198) E.L.T. 199 (Tri. - Del.) where it was decided as follows : "After hearing both the sides we find that the issue stand decided by the Hon'ble Supreme Court in the case of BPL Display Devices Ltd. v. CCE, Ghaziabad reported as 2004 (174) E.L.T. 5 (S.C.). Under similar set of facts and circumstances where a small percentage of the imported goods were damaged in transit and hence could not be used for the intended purpose, Hon'ble Supreme Court has held that benefit of notification cannot be denied inasmuch as the expression "for use" is to be read as "intended for use". As such the Hon'ble Supreme Court has further observed that the benefit can only be denied when there is diversion of the imported goods for other purposes. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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