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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 ..... and presumptions cannot take place of evidence. Higher appellate fora have consistently reiterated the view that importer/actual user cannot be called upon to pay duty on negligible percentages of storage or transit loss etc. Appeal allowed - decided in favor of appellant. - C/2597/2010, C/2598/2010, C/1436/2012, C/26289/2013 - A/31476-31479/2017 - Dated:- 4-9-2017 - Shri M.V. Ravindran, Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical) Shri Jitendra Motwani, Advocate for the Appellant. Shri Arun Kumar, Dy. Commissioner/AR for the Respondent. ORDER [Order per: Bench] 1. The disputes in all these appeals since relating to the correct quantification of imported Crude Palm Oil in bulk, they are taken up together for common disposal. 2. In appeal No. C/2597/2010, the facts of the case are the appellants had imported Crude Palm Oil of Edible grade at concessional rate of duty under notification No. 21/2002 Cus, dated 01.03.2002 as mandated, for manufacture of refined oil, refined palmolein, vanaspati etc. following the procedure in Board s Circular No. 46/96-Cus, dated 30.08.1996. The imported goods were pumped from the ship to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.029 M.Ts, however it appeared that the importer had recorded use of only 74436.540 M.Ts in their records. It appeared to the department that importer has not utilised 394.489 M.Ts for intended purpose. In adjudication proceedings, vide impugned order dated 20.02.2012, the Commissioner (Appeals) confirmed differential duty liability of ₹ 72,33,879/- alongwith interest liability and also imposed penalty of ₹ 7,50,000/- under section 112(b)(ii) ibid. Hence the appeal. 6. On 04.09.2017, when the matter came up for hearing, Shri Jitendra Motwani, Ld. Advocate for the appellant, made oral and written submissions, which can be broadly summarised as under: (i) In all these cases, the shore tank measurement has been done before minimum period of 48 hours required for the turbulence and frothing due to pumping action to settle. (ii) The practice adopted internationally is that adequate time of atleast 48 hours is given for cargo to settle down and then only measurement of the volume is done. (iii) In the case of appeal No. C/26289/2013, where the imported palmoil had been directly pumped to their own tanks, assessment was done on the basis of ullage report and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Chemicals Ltd [2007(213)E.L.T 417 (Tri.-Ahmd.)]; CCEC ST, Bhubaneswar-I vs. Indian Metals Ferro Alloys Ltd [2014(301)E.L.T 340(Tri.-Kolkata)]; ITC Ltd. vs. CC Calcutta [1999(113)E.L.T 213 (Tribunal) and SPIC Ltd vs. CCE, Maduri [2009(247)E.L.T 780 (Tri.-Chennai)]. 11. Ld Advocate contended that the term for use has been interpreted by Hon ble Supreme Court in the case of Dalmia Dadri Cement Ltd [2004(178)E.L.T 13(S.C.)] to mean intended for use . 12. On the other hand, on behalf of the department, Ld. AR, Shri Arun Kumar opposed the appeals and also made oral submissions which can be broadly summarised as under: (i) Goods have been imported under notification No. 21/2002-CUS which was amended by notification No. 91/2007-Cus, dated 02.08.2007. As per this amendment in S.No. 30, duty exemption was extended subject to a condition to follow procedures set out in (Customs Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. As per this condition, crude palmoil is meant only for use in manufacture of refined edible oil etc. and, inter-alia, on failure to comply with said condition, importer was required to pay on demand the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and frothing created due to pumping, will result in higher dip measurement reading. That only for this reason, quantity actually received was much less which would explain the shortages as alleged by the department. 13.4 Appellants have also contended that they have utilised the entire quantity imported only for the intended purpose and that there is no allegation or evidence of diversion or clandestine removal of the short quantity. 14.1 In an earlier batch of appeals involving identical issue, this Tribunal vide Final Orders No. 30951-30969/2017 and 30970-30972/2017, dated 23.06.2017 had found merit in the contention of the importers therein that dip reading should have been taken after 48 hours, as per international practice set by the Federation of Oil, Seeds and Fats Association (FOSFA). The said order had also taken a note of the Board s Circular No. 96/2002-Cus issued by CBEC, which, while advising assessment of such bulk quantity cargo to be done on the basis of shore tank receipt, had also advised that dip and temperature of cargo in the shore tank shall be taken after cargo is settled (emphasis added). We have no reason to deviate from the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March 2009 36,365.337 36,263.779 102.139 0.28 2. C/2598/2010 25,45,653/- March 2007- October 2008 1,56,613.400 1,56,424.678 188.722 0.12 3. C/1436/2012 1,45,37,400 Oct. 2008 - Nov. 2009 1,16,263.293 1,15,511.047 752.246 0.64 4. C/26289/2013 72,33,879/- Nov.2009- Aug.2010 74,436.540 74,931.029 394.489 0.53 14.5 Higher appellate fora have consistently reiterated the view that importer/actual user cannot be called upon to pay duty on negligible percentages of storage or transit loss etc. The Tribunal in National Organic Chemical Industries Limited, reported at [2000(126)E.L.T 1072 (Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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