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TMI Blog2017 (10) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... uantity of goods mentioned in invoice and the transaction value given irrespective of the quantity of the goods imported received at the Port. 2. The brief facts are that: (i) The importer appellant imported respective quantities of methanol, for which originally goods were provisionally assessed under warehousing Bills of Entry. (ii) The appellant says that the Customs have assessed the duty based on the quantity mentioned in the Bills of Lading/Invoices and other documents whereas the quantity received is less, and the duty, therefore, should be charged only for the quantity received i.e., based on the shore tank receipts. (iii) The appellant claims that they have discharged the duty on the quantity received and removed from the wareh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made. Under Section 23(2) the owner of the imported goods may also at any time before such orders have been made relinquish his title to the goods and shall not be liable to pay any duty thereon. In short, he may abandon the said goods even after they have physically landed at any port in India but before any of the aforesaid orders have been made. This again is for the good reason that the act of importation is only complete when goods are in the hands of the importer after they have been cleared either for home consumption or for deposit in a warehouse. Further, as per Section 47 of the Customs Act, the importer has to pay import duty only on goods that are entered for home consumption. Obviously, the quantity of goods imported will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction value. In spite of the ocean loss , the appellant has to make payment on the basis of the Bill of Lading quantity. 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, as follows :- "It was further submitted that in the case of Apar (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween 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 Tribunal is on a complete misreading of Section 14 of the Customs Act. First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry scheme and Rules 4 and 9 of the Customs Valuation Rules.
18. We therefore, set aside the Tribunal s judgment and declare that the quantity of crude oil actually received into a shore tank in a port in India should be the basis for payment of customs duty. Consequential action, in accordance with this declaration of law, be carried out by the customs authorities in accordance with law. All the aforesaid appeals are disposed of in accordance with this judgment."
5. Following the Hon'ble Supreme Court's decision (supra), the impugned orders are set aside and the appeals are allowed with consequential relief, if any, to the appellant.
( Operative portion of the Order was pronounced in Open Court on 29/08/2017 ) X X X X Extracts X X X X X X X X Extracts X X X X
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