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TMI Blog2019 (10) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. - Customs Appeal No. 53440 of 2018-[DB] - Final Order No: 51288 /2019 - Dated:- 3-10-2019 - Mr. Anil Choudhary, Member (Judicial) and Mr. Bijay Kumar, Member (Technical) Shri Amit Jain, Advocate - for the appellant Shri Sunil Kumar, Authorized Representative - for the respondent ORDER The present appeal is arises order dated 10.07.2018 passed by the Additional Director General (DRI) vide which he has confirmed, the demand raised vide Show Cause Notice dated 15/19-05-2017 against the appellant pertain to inclusion of the ship demurrage charges incurred by the appellant. This ship demurrage charge was not declared by the appellant for the purpose of determination of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such demurrage charges. 4. The Directorate of Revenue Intelligence (DRI), Kolkatta Zonal, unit conducted an inquiry in relation of customs duty payable by the appellant on account of such demurrage charges. During the investigation itself the appellant deposited differential customs duty amounting to ₹ 1,50,73,863/- along with interest of ₹ 63,31,105/- towards the demurrage charge paid on those bills of entry through which imports were made. Learned Adjudicating Authority held that demurrage charges are liable to customs duty in terms of Rule 10 (2) of Valuation Rules and confirmed the demand along with interest and also imposed penalty under Section 114 of the Customs Act. 5. Learned Advocate on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 10(2) of the Customs Valuation Rules. It was impressed upon that the provisions of Section 14 prior to and there after the amendment do not authorised the inclusion of demurrage charges to the value of imported goods for the purpose of assessment of duty of Customs. The Explanation has been added in Rule 10(2) of Valuation Rules for inclusion of demurrage charges is not sustainable and has been declared to ultra vires in the case of Tata Steel Limited vs. Union of India [2019 TIOL-595-HC-ORISSA-CUS]. 5.3 Hon ble Court also held that the demurrage charge is not to be included as a part cost envisaged by the Legislation. Learned Advocate also relied upon the decision Tata Steels Limited vs. Union of India [2019-TIOL-595-HC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand pertain to 282 Bills of Entry for which re-assessment has been proposed in the Show Cause Notice and it was confirmed by the Adjudicating Authority in the impugned order is contrary to the settled Principal of law as the Department as not file any appeal against the said finalisation of the Bills of Entry placing reliance on all the following decisions; (i) Collector of Central Excise, Kanpur vs. Flock (India) Private Limited[2000 (120) ELT 285 (SC)] (ii) Priya Blue Industries Limited vs. Commissioner [2004 (172) ELT 145(SC)] (iii) Madhus Garage Equipments vs. CC(A),[2006 (198) ELT 388(Tri.-Bang)] (iv) Imperial Exports vs. CCE, Cochin,[2007 (212) ELT 113 (Tri.-Bang)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Jamnagar vs. Grasim Industries Limited [2013 (296) ELT 39 (Tri.-Del.)], wherein it is held that the inclusion of demurrage charge is justified in view of insertion explained to Rule 10 (2) Valuation Rules 2007. 7. We have considered the arguments made by the learned Counsel on behalf of the appellant and learned DR for the Revenue. 8. We find that the Hon ble High Court of Orissa and it was in the case of Tata Steels has declared the proviso to Rule 10 (2) of the Valuation Rules to be ultra virus. Revenue has not brought any ruling contrary to the judgement of Hon ble High Court of Orissa wherein the proviso appended to Section 10 (2) of the Valuation Rules has been struck down. 9. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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