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TMI Blog2019 (8) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the same needs to be set aside. Inclusion of freight of the daughter vessels - HELD THAT:- The method has been prescribed by the Board and the aforesaid Circular No. 04/2006 which is binding upon the departmental officers including the Commissioner. Wherever WSO rates are available, it has been categorically held that those rates must be applied and alternative method can be used only if these rates are not available - In the instant case, the Learned Commissioner has ignored this direction of the Board and has reckoned a different value on the ground that the appellant has recovered a higher amount towards freight. Such an order is contrary to the directions of the CBEC which are binding upon him. The duty liability needs to be worked out directly from the WSO rates which, according to the appellant, are available for the period and any demand made on the basis of some other calculation is not sustainable - the matter must be remanded to the original authority for the limited purpose of calculation of the differential duty payable as per the WSO rates duly attested on the basis of AFRA rates during the relevant period. Appeal allowed by way of remand. - SHRI S.S GARG, JUDICI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject goods. The aforesaid worksheet produced before us by Ld. Counsel today may also be considered by the Commissioner. Accordingly, we set aside the impugned order and remand the case to the Ld. Commissioner for passing a speaking order after finalization of the provisional assessments in the aforesaid manner. 2. If the demand of duty raised in the SCN and the corrigendum thereto was premature for want of finalization of provisional assessments, the proposal for imposing penalty was also likewise. In this context, we must also consider the submission of the appellants that they had no intent to evade payment of duty on the subject goods. During the course of investigations, they had themselves paid duty on daughter vessel freight on a notional basis. What remained to be done was correct determination of the freight to be included in the assessable value. There was no intent to evade payment of duty. Ld. SDR has pointed out that Section 55 of the Customs Act was clear enough to enable the assessee to correctly determine the freight to be included in the assessable value of the subject goods. Ld. Counsel has countered this submission by pointing out that the includability of dau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available for the transportation between high seas and respective minor ports in India. In cases where the World Scale Freight Rate Index is not available, the cost element required for arriving at the freight rate may be based on the benchmarks used by the World Scale Association. In both cases, Wharfage and transshipment charges should be added to arrive at the total freight. It was also made clear that the data in respect of these calculations should be submitted by the respective importers to the satisfaction of the assessing officer. Accepting services by the Cost Accountant s may also be considered by the respective Commissionrates depending upon the extent of complexity of the cases. 5. The matter has been considered by the Board and it has been decided that all pending cases involving lighterage charges would be finalized on the basis of World Scale Rates and AFRA wherever available. In case of minor ports where WSO rates along with AFRA are not available, the concerned Commissioners should direct the shipping companies to get the WSO rates fixed. (iii) The appellant being a Public Sector Undertaking, no intention to evade Customs Duty and therefore no penalty should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that they there was a typographical error in the table submitted by them by mentioning wrong PD Bond number but that should not vitiate the entire report. He would submit that if the matter is remanded with specific directions regarding the method to be adopted for calculation of differential duty, he would satisfy the Commissioner with proper figures. He would also pray for setting aside the penalty under Section 114A upon them. 5. Learned Departmental Representative reiterates the findings of the impugned order and asserts the figures of actual freight charged by them were available the question of WSO freight figures does not arise in this case. 6. We have considered the arguments of both sides and perused the records. 7. We find that in the Final Order No. 692/2007 dated 07.06.2007, the Bench had categorically held that Section 114A of the Customs Act 1962 does not apply in this case and no penalty can be imposed upon the appellant. We are not aware of any order of a higher judicial forum setting aside this finding of this Bench. The imposition of penalty by the Commissioner in the impugned order is a clear violation of this direction by this Bench and therefore, the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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