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TMI Blog2018 (2) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Appellant Dr. J. Harish, Dy. Commissioner (AR), For the Respondent Per : S.S GARG The present appeal is directed against the impugned order dt. 05/09/2007 passed by the Commissioner of Customs whereby the Commissioner has confirmed the differential duty and has also imposed demurrage charges as well as penalty under Section 114A of the Customs Act, 1962 and also imposed redemption fine. Further the Commissioner has also appropriated the duty of ₹ 1,18,67,234/- deposited by the importer under Section 18(2) of the Customs Act, 1962 towards duty payable. 2. Briefly the facts of the present case are that the appellant who is a Government of India undertaking, engaged in the refining and marketing of petroleum prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave paid demurrage charges to the supplier for detention of the vessel beyond the agreed Lay Time and during the relevant period, on 36 occasions they detained the vessel beyond the agreed time. When the investigation was started by the DRI into the HSS charges paid by the appellant to the IOCL, immediately on initiation of investigation and obtaining information from Head Quarters regarding the HSS charges to IOCL, the appellant remitted the differential duty on 06/09/2004 which was also recorded in their statements made during the investigation. Thereafter on receipt of the original documents, appellant submitted the same with Customs authorities with regard to finalise the issue. In this factual background, the appellant was issued sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of whether the demurrage charges are to be included in the assessable value is no longer res integra and stands decided in favour of the assessee by Honble Supreme Court in the case of Mangalore Refinery Petrochemicals Ltd.(supra) wherein the apex court held that demurrage admittedly incurred after goods reaching India ports and hence a post-importation event and therefore cannot form part of transaction value. He further relied upon the following decisions:- i. Shine Petroleum Pvt. Ltd. Vs. CCE [2008(224) ELT 143 (Tri. Bang.) - Further affirmed by Hon ble Supreme Court - 2014(324) ELT A77 (SC). ii. Commissioner Vs. Grasim Industries Ltd. [2013(296) ELT 39 (Tri. LB)] In view of the settled position, he submitted that demand of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation under Sectio 28 of the Customs Act, 1962 whereas in the present case, the demand has been levied under Section 18(3) of the Customs Act, 1962 and not under Section 28 and therefore imposition of penalty is not sustainable. 5.3. Learned counsel also submitted that the redemption fine has wrongly been imposed in the present case. He further submitted that it is a settled law when goods are not available for confiscation, redemption fine is not imposable except in cases where seized goods have been released under bond. In support, he relied upon the following decisions:- i. Jai Balaji Industries Ltd. Vs. CC ST [2015( ELT 149 (Tri. Bang.)] ii. Shiv Kripa Ispat Pvt. Ltd. Vs. Commissioner [2009(235) ELT 623 (Tri. LB) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further the Tribunal has also dropped the imposition of redemption fine relying upon the decision in the case of Jai Balaji Industries Ltd. and Shiv Kripa Ispat Pvt. Ltd. (supra). Further the interest as demanded by the impugned order under Section 18(3) was also set aside in view of the decision of the Tribunal in the Sterlite Industries (India) Ltd. (supra). Considering all the facts and circumstances and by following the ratio of the decision rendered by this Tribunal dt. 30/08/2017, we are of the view that the impugned order is not sustainable in law and the same is set aside by allowing the appeal of the appellant with consequential relief, if any. (Operative part of this order was pronounced in court On conclusion of the hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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