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TMI Blog2017 (10) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... BEC Circular No. 96/2002-CUS, dated 27.12.2002. Quantification of bulk liquid cargo was done on the basis of joint shore tank ullage done by surveyors in the presence of importers and Customs authorities. In such survey, a quantity of 36,365.337 M.Ts was arrived at. However, appellants had themselves recorded only a quantity of 36,263.779 M.Ts as used by them, thus a quantity of 102.139 M.Ts Crude Palm Oil of Edible grade was alleged not to have been used for the intended purpose. In adjudication proceedings, differential duty of Rs. 18,62,386/- alongwith interest liability and also penalty under section 112 of Customs Act, 1962 was ordered. Appeal filed against this order was rejected by the Commissioner (Appeals) vide impugned order dated 03.09.2010. Hence, appeal C/2597/2010. 3. On similar facts, for the period March 2007 to October, 2008, against shore tank receipt quantity of 1,56,613.400 M.Ts, the quantity recorded as used by appellant was 1,56,424.678 M.Ts. Department initiated proceedings for recovery of differential duty of Rs. 25,45,653/- alongwith interest liability thereon, on 188.722 M.Ts, which appeared to be not utilis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantity. Appellant had also appointed private surveyors to take dip measurement reading after 24 hours of discharge of oil into their shore tanks. The readings taken subsequently were always lower than the ship ullage quantity. Ld. Advocate draws attention to two such consignments where there is a difference between ship ullage report and surveyor report. Bill of Entry No. / Date Reading as per Customs tanker ullage report Reading as per Surveyors shore tank dip management Report (after 24 hours) 900959/24.11.2009 4492.245 4467.181 01089/23.12.2009 9465.538 9406.530 7. In all these cases, no evidence has been adduced to estgablish that the short quantities were clandestinely removed. The difference in quantities was only on account of dip measurement before the bulk cargo settled down fully. They contend that the quantity as received, in each of the cases, has been utilised fully for the intended purpose, without any diversion or transfer to any other person or other means of disposal. 8. In the absence of evidence to establish the malafides of the appellants, they cannot be penalised. 9. Ld. Advocate submits that in respect of Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (ii) Assessment of bulk refined cargo of custom duties is "shore tank receipt" quantity done by surveyors in the presence of both importers and Custom authorities. The methodology followed in such assessment is based on CBEC circular No. 96/2002, dt. 27.12.2002. No time limit has been specified in the said circular for arriving at quantities for assessment. This being so, the quantity measured in the joint shore tank survey is the correct quantity that is to be considered as imported. (iii) In respect of appeal No. C/26289/2013, since the crude palmoil was being pumped directly to appellant's own shore tanks, the ship's ullage quantity was taken as the basis for assessment, as per the guidelines of Board circular No. 96/2002. (iv) In all these cases, the dispute concerns the shortfall in utilisation of imported quantity as obtained from appellant's own records. (v) These short quantities had to be considered as quantities which should not have been put to use for the intended purpose and hence differential duty of customs is very much liable to be demanded on these quantities. (vi) It is the responsibility of the importer to ensure that entire import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken in those final orders. We are of the considered opinion that dip measurement having been taken before settling down of the cargo, that in all probability, be the reason for alleged difference in imported quality and quantity actually used. 14.2 We also find that there is no allegation supported by evidence either in the show cause notices or in the orders of lower authorities, that the quantities as found short as per the records of the appellant, have actually been diverted or clandestinely or removed for sale or otherwise disposed of, without discharge of custom duty liability thereof. When department alleges that part of the imported quantity has not been "used for intended purpose", some evidence will have to be put forth to prove that they have used such quantity for any other purpose, contrary to conditionalties laid down in the exemption notification, or have illegally disposed of such quantity. This is sine qua non. Assumptions and presumptions cannot take place of evidence. 14.3 In appeal No. C/26289/2013, the allegations are on same lines, only that differential duty has been demanded between the diff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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