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TMI Blog2019 (4) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... der No. 20329/2019 - Dated:- 4-4-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. V. PADMANABHAN, TECHNICAL MEMBER Shri Syed Peeran, Advocate For the Appellant Dr. J. Harish, Jt. Commissioner (AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt. 22/09/2009 passed by the Commissioner(Appeals). 2. Briefly the facts of the present case are that the appellant is a Government of India undertaking engaged in the business of refining of crude oil and marketing of various petroleum products. Appellants have an installation at Mangalore (MLIF) wherein they have appropriate registration as a private bonded warehouse to receive and store imported LPG as well as indigeno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, 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 the Hon ble Supreme Court in the case of CCE Vs. Mangalore Refinery Petrochemicals Ltd. [2015(325) ELT 214 (SC)]. 4. On the other hand, the learned AR reiterated the finding of the impugned order. 5. Heard both sides and perused records. 6. We find that the issues involved in the present case are no more res integra and have been settled in favour of the assessee by the judgments of the Hon ble Supreme Court cited supra. Further we find that both the issues involved in the appeal have been considered by this Tribunal in the case of BPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ad valorem basis and Sections 13 and 23 do not stand in the way because it is not the question of demanding duty on goods not received, but it is the demand of duty on the transaction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of a purchase tax is the purchase of goods. The quantity of goods stated in a bill of lading would perhaps reflect the quantity of goods in the purchase transaction between 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 impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a demand or duty on transaction value would be leviable in spite of ocean loss , it flies in the face of Section 23 of the Customs Act in particular, the general statutory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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