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TMI Blog2016 (11) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... sel in the presence of customs Officers and quantities discharged were arrived at. The assessments of the Ex-bond Bills of entry were finalized as per the ship ullage reports. The importer fled Refund claims for Refund of excess paid Customs duty on short quantity received between ship ullage and quantity received in shore tanks. The adjudicating authority rejected the refund claims filed by them vide Speaking Order No. 18/2005 dated 25.06.2005 based on the following reasons: (i) The Bills of entry on which refund was claimed were finalized and also communicated to the appellants. During the process of finalization of the assessment the importers and their agents were also requested for production of various documents necessary for final a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited. iii) that the provisions of unjust enrichment does not attract for the reason that the assessee has discharged duty on ship ullage quantity whereas the total quantity received at on-shore tank is less, and as the short receipted quantity is non-existent there is no question of passing on the incidence of duty. 3. Department has filed appeal on following main grounds. i) That the assessee has filed the refund claim before the finalization of the Bills of Entry. ii) That the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd., Vs. Commissioner of Customs (Prev,) 2004(172) ELT 145 (SC) has made it clear that claim of refund cannot be maintained unless the order of assessment has been challenged. Since the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic Notice vide C. No. VIII/01/01/2003 C Il CUS TECH, dated 24.03.2003, mentioned in the Grounds of Appeal [Para 3(ii)] stands withdrawn. Ld. Advocate further contended that since the assessments were challenged based on the Hon'ble Supreme Court's directive in NOCIL, now reiterated in Mangalore Refineries & Petrochemicals Limited, (supra), even before finalization of the assessment, there is no formal challenge required as was observed by the Commissioner (Appeals) in the OIA No.3/2006 dated 17.01.2006, therefore assessment can be challenged even at the provisional stage by filing of refund claims, and hence the principle in Flock India Pvt. Ltd., and in Priya Blue Industries Ltd., cases are not applicable. 6. Heard both sides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar which was based on the Apex Court's decision in the case of NOCIL India Ltd. in Civil Appeal No. 6764/1999 [2002 (142) E.L.T. A280 (S.C.)] which has actually upheld the Tribunal's order that customs duty is leviable on the onshore tank receipt cargo and not as per ship ullage report. In these circumstances, there is no merit in Revenue's appeals and we reject the same. 8. The facts in the present case under appeal by the Department are identical to the case of Ruchi Infrastructure Limited, (supra) as could be seen from the comparative representation submitted by Ld. Advocate of the Orders-in-Appeal giving rise to aforesaid Tribunal's order in Ruchi Infrastructure Limited, and subject appeal in case of Respondent. The ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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