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TMI Blog2019 (5) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... value - HELD THAT:- All these charges are not in the nature of pre-importation charges, therefore, all of them are not includable in the assessable value in terms of Rule 9(2)(b) of Customs Valuation Rules, 1988. Each of these expenses are to be separated and those items of expenses which pertain to import handling charges, handling fee, berthing fee and tug attendance fee which are in the nature of pre-importation cost only need to be included. Items of cost or expenditure with regards to the constructions and maintenance of shore tanks for storage of LPG, Transportation of LPG etc. which are in the nature of expenditure post importation need not be included - For the purposes of identifying the elements of pre-import charges or expenditure, the issue needs to go back to the original adjudicating authority. Whether the Canalization charges paid to M/s. Indian Oil Corporation Ltd. (canalizing agent), are to be added to the price to arrive at the assessable value? - HELD THAT:- Such charges are includable in the assessable value - issue squarely settled by the decision in the case of Hyderabad Industries Ltd. vs. Union of India [ 2000 (1) TMI 46 - SUPREME COURT ] wherein it was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional Tug Revenue raised issues relating to addition of certain expenses on charges, expenses commissions incurred by the appellants and have finalised provisional assessments with or without issue of SCN. 3. Learned Counsel for the appellants has traced the history in respect of Appeal No. C/85434/2008 (Period 1.04.2000 to 31.03.2003) and submitted that Adjudicating Authority had passed an ex-parte Order on 30.12.2003 finalizing the provisional assessment/ without issuing any Show Cause Notice and/or affording personal hearing, raising a demand of ₹ 1,40,99,583, by arbitrarily including certain costs expenses while determining the assessable value for the LPG imported. Aggrieved by said final assessment Order, appellants had filed an appeal before the Commissioner (Appeals), inter alia, contending that the ex-parte Order finalizing the Bills of Entry was nullity, being in violation of principles of natural justice, and, hence, it be so declared and quashed. The Appellate Commissioner, vide Order-in-Appeal dated 21.07.2005, upheld the original order. On an appeal filed, Tribunal, vide its Final Order No. A/259/2012/WZB/C-1 dated 29.03.2012, remanded the matter back to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On an appeal filed by the appellants, Learned Commissioner (Appeals), vide Order-in-Appeals No.PUN-CT-APPII-000-272-17-18 dated 17.11.2017, has upheld the Order-in-Original dated 31.3.2016 and rejected the appeal filed by the Appellants. Hence appeal No. C/85434/2018 filed. 3.1. In respect of Appeal No. C/380/2010, Learned Counsel for the appellants that the issues though remaining the same the sequence of events are as under: SCN dated 13.04.2006 SCN dated 19.05.2006 was issued and Order-in-Original dated 27.09.2006 passed. Vide Order-in-Appeal dated 26.04.2007, the same was remanded by Commissioner (Appeals). In remand in first round, Order-in-Original dated 28.02.200 was passed, which was remanded again vide, Order-in-Appeal dated 20.11.2008. In the second round, order-in-Original dated 30.04.2009 was passed. On an appeal, order-in-Appeal dated 22.01.2010 was passed holding that 1% landing charges is to be loaded and Canalizing charges not includable. 3.2. Learned Counsel for the appellants submitted further, that canalizing charges paid to IOCL are not to be loaded, as held by Commissioner (Appeals) and the issue was not agitated by department. It was similarly also held in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. He submitted that Hon'ble Tribunal to allow their appeal and set aside the impugned Orders, with consequential relief. 5. Learned Authorised Representative has reiterated the findings of OIO and submitted as follows 5.1. Landing Charges: Clause 4.4 of the agreement between BPCL and M/s. Finolex Industries Ltd. is relevant (page 106 of the Appeal No. C/380/10-Mum) clearly mentions the nature of the charges; the import handling charges are handling fees, berthing fees and tug attendance fees and all these fees comes within the ambit of pre-importation charges as per Rule 9 (2) (b) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988; though the appellants contended that 1 % of the CIF value needs to be taken instead of the actuals, Hon'ble Supreme Court in the case of Wipro Ltd vs. Assistant Collector of Customs reported in 2015 (319) ELT. 177 (SC) held that only in the absence of actual costs, fictionalized costs are to be adopted; As actual costs are available as detailed above, the same would constitute the actual landing charges instead of the notional 1% of CIF value. 5.2. Canalising Charges: the issue stands settled by the Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (3) of Section 18 of Customs Act, 1962, with effect from 13.07.2006, on duty payable on finalization of assessment or when duty is paid before finalization. 6.1. Regarding which quantity, shore tank quantity or ullage quantity, is required to be taken for the purposes of assessment of petroleum products, we find that this is squarely settled in favour of the appellants by Hon'ble Supreme Court in the case of Mangalore Refinery Petroleum (2015 (323) ELT 433 (SC). Therefore, the issue is no longer Res Integra. We hold that all the assessments are to be done on the basis of shore tank quantity only. 6.2. Coming to the issue of addition, of 1% of the assessable value or the actual cost/ to arrive at the landed cost, we find that the appellants have submitted that Commissioner Appeal vide order in Appeal No PUN-CT-APPII-000-272-17-18 dated 17.11.2007 had taken a view that landing charges are to be considered @ 1% and that the said order was not appealed against. The Learned AR for the department has however, submitted that as per Hon ble Supreme Court in the case of Wipro Ltd Vs ACC 2015 (319) ELT 177(SC), where actuals are available actuals need to be taken and not a fict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e separated and those items of expenses which pertain to import handling charges, handling fee, berthing fee and tug attendance fee which are in the nature of pre-importation cost only need to be included. Items of cost or expenditure with regards to the constructions and maintenance of shore tanks for storage of LPG, Transportation of LPG etc. which are in the nature of expenditure post importation need not be included. For the purposes of identifying the elements of pre-import charges or expenditure, the issue needs to go back to the original adjudicating authority. The appellants shall submit such data as may be required by adjudicating authority. If such data is available. The same shall be considered for arriving at landed cost. In case, the original adjudicating authority finds that actual landing charges are not available, loading of national amount @ one per cent can be taken for the purposes of assessment as held by the Hon'ble Supreme Court in the case of M/s. Wipro Ltd. (supra) and as arrived at by the Learned Commissioner, Appeals. 6.3. In respect of the canalization charges paid by the appellants to M/s. IOCL we find that the issue is squarely settled by the Hon ..... 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