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TMI Blog2018 (8) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... f appellant. - Appeal No. C/383/2009 - Final Order No. A/30830/2018 - Dated:- 2-8-2018 - HON'BLE MR. M.V.RAVINDRAN, MEMBER (JUDICIAL) And HON'BLE MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri S. Thirumalai, Advocate for the Appellant Shri Arun Kumar, Dy. Commissioner/AR for the Respondent ORDER [ Order Per : P.V. Subba Rao ] 1. This appeal is filed against the Order-in-Appeal No.01/2009 (V-II) CUS dated 25.02.2009. The appellant imported edible oils which were stored in shore tanks which were registered as Customs Private Bonded Warehouses. As per the established law and practice, the import duty in such cases is calculated depending upon the quantity received in the shore tanks and not what came in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice show that this amount was calculated on 23 bills of entry listed in Annexure-II as the difference between the quantity as per the old calibration charts and as per the new calibration charts. The show cause notice also encloses Annexure-I in which various quantities on which duty paid, were found to be in excess of what was to be paid by them as per the new calibration charts. As per this Annexure-I to the show cause notice itself, the assessee had, in fact, paid an excess duty of ₹ 24,81,268/- in respect of some other bills of entry. The appellant, however, paid the differential duty as demanded. The lower authority, vide his Order-in- Original No.12/20087 dated 01.07.2008 confirmed the demands on the importer and appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel further contended that quantification carried out on vessels/ship cannot be the reason for ordering re-calibration of tanks as has been done by the Asst. Commissioner. He further contended that short payment, if any, against some bills of entry must be set off against excess payments in respect of the other bills of entry. He further argued that the short payment is hit by time bar. Lastly, he contended that there is no case to impose penalty or demand interest and prayed to set aside the Order-in- Appeal. 4. The learned Departmental Representative, on the other hand, reiterated the arguments made in the Order-in-Original and Order-in-Appeal and argued that it cannot be denied that there was excess quantity of which duty was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also not correct. At any rate, the appellant had already paid the differential duty demanded by the department and there was no reason for the department to issue show cause notice or propose to impose penalty on the appellant. The demand of differential duty along with interest and penalty are therefore liable to be set aside and we do so. As far as the request of the appellant for refund of excess duty paid by them is concerned, refund of duty was not an issue under consideration in the show cause notice or the Order-in-Original or Order-in-Appeal. The appellant is free to file a refund claim for the excess duty paid and this can be considered as per the law by the authorities. 6. The appeal is allowed. ( Operative part of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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