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TMI Blog2018 (5) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... C/Early Hearing/21256/2015, C/Early Hearing/20944/2017 in C/22971/2014-DB, C/22972/2014-DB, C/22973/2014-DB, C/22974/2014-DB, C/22975/2014-DB, C/22976/2014-DB, C/22977/2014-DB, C/22978/2014-DB, C/22979/2014-DB, C/22980/2014-DB C/22971/2014-DB, C/22972/2014-DB, C/22973/2014-DB, C/22974/2014-DB, C/22975/2014-DB, C/22976/2014-DB, C/22977/2014-DB, C/22978/2014-DB, C/22979/2014-DB,C/22980/2014-DB S. S. Garg, Judicial Member And Devender Singh, Technical Member Mr. Kuriyan Thomas, Advocate For the Appellant Mr. Chandra Mohan, Commissioner (A) For the Respondent ORDER Per : Devender Singh The Revenue has moved these miscellaneous applications for bunching of the appeals as the issue involved in all the appeals is identical. In view of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been settled against the Department. The issue of whether assessment of liquid bulk cargo should be based on the quantity received in the shore tanks has been decided in favour of the assessee in the case of Mangalore Refinery & Petrochemicals Ltd. vs. CCE: 2015 (323) ELT 433 (SC). As for the second issue, he submitted that the Hon'ble Supreme Court has held that demurrage charges are post-importation in nature and hence, not includable in the value. In this regard, he relied on the judgment of Hon'ble Supreme Court in the case of CCE, Mangalore vs. Mangalore Refinery & Petrochemicals Ltd.: 2015 (325) ELT 214 (SC). 5. Learned AR reiterated the submissions in the findings of the Order-in-Appeal. 6. After hearing both the sides, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue. 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) Ltd. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." By following the above judgment of the Hon'ble Supreme Court, we hold that the assessment is to be made on the basis of quantity of crude oil actually received in the shore tanks in the port of arrival in India. 6.1 On the second issue of inclusion of demurrage charges fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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