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TMI Blog2017 (6) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... d in those five appeals. As against 5 appeals, only three appeal Nos. C/468, 469 & 465/2007 were listed for hearing today, and then the Bench called for appeal Nos. C/467 & 466/2007, which were not listed but were filed against the same common impugned order dated 24.4.2007. Hence, we are disposing of all the five appeals by this common order, as identical issue is involved in all these appeals. The details of five appeals are given herein below: Sl. No. Appeal No. Period Amount 1 C/465/2007 August 1998 Rs.29,75,851/- 2 C/466/2007 September 1998 Rs.23,89,521/- 3 C/467/2007 March 2003 Rs.6,02,615/- 4 C/468/2007 November 2002 Rs.1,20,576/- 5 C/469/2007 March 1999 Rs.15,72,212/- 2. For the sake of convenience, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice, a further proposal to include amounts paid towards demurrage charges in the transaction value for the purpose of assessment was also made by the department. After following the due process of law, the Deputy Commissioner of Custom vide the order dated 23.11.2006 confirmed the proposal in the show-cause notice. Aggrieved by the said order, the appellant filed appeals before the Commissioner (A) who upheld the same by rejecting the appeals of the appellant and hence, the present appeals. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed by misconstruing the interpretation of Section 14 of the Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved into shore tank in port in India should be the basis for payment of customs duty. It is pertinent to refer paragraphs 15-18 of the apex court decision, which is reproduced herein below: "15. We are afraid that each one of the reasons given by the Tribunal is incorrect in law. The Tribunal has lost sight of the following first principles when it arrived at the aforesaid conclusion. First, it has lost sight of the fact that a levy in the context of import duty can only be on imported goods, that is, on goods brought into India from a place outside of India. Till that is done, there is no charge to tax. This Court in Garden Silk Mills Ltd. v. Union of India, 1999 (8) SCC 744 = 1999 (113) E.L.T. 358 (S.C.), stated that this takes place, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld perhaps reflect the quantity of goods in the purchase transaction between the parties, but would not reflect the quantity of goods at the time and place of importation. A bill of lading quantity therefore could only be validly looked at in the case of a purchase tax but not in the case of an import duty. Thirdly, Sections 13 and 23 of the Customs Act have been wholly lost sight of. Where goods which are imported are lost, pilfered or destroyed, no import duty is leviable thereon until they are out of customs and come into the hands of the importer. It is clear therefore, that it is only at this stage that the quantity of the goods imported is to be looked at for the purposes of valuation. Fourthly, the basis of the judgment of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... face of Section 23 of the Customs Act in particular, the general statutory scheme and Rules 4 and 9 of the Customs Valuation Rules. Indeed, this Court has, in Collector v. Hindustan Petroleum Corporation, 2001 (131) E.L.T. A87 (S.C.) stated: "The Appellate Tribunal in its order in question on the issue as to which of these two viz. the quantity of crude oil as revealed by the Vessel s Ullage Survey Report or the quantity determined by dip measurement in the shore tanks as revealed by the Cargo Intake Certificate, should be adopted for the purpose of assessment of duty of the imported crude oil, following its decision in the case of Commissioner v. HPCL [2000 (121) E.L.T. 109 (Tribunal)] had held that quantity of crude oil shown in Ullag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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