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TMI Blog2023 (9) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... of MANGALORE REFINERY AND PETROCHEMICALS LTD. VERSUS COMMISSIONER OF CUSTOMS, MANGALORE [ 2015 (9) TMI 245 - SUPREME COURT] wherein the Hon ble Supreme Court had held 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. In view of the above decision of the Hon ble Apex Court, it is held that actual oil quantity physically received into the shore tank should be taken as the basis for payment of duty at the time of ex-bond bills of entry. The impugned order-in-appeal is set aside - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,35,547 5 S/2-50/99 APPG.I DATED 26.02.99 14 Apr 97 To Dec 98 67,33,656 9,45,713 6 S/2-78/99 APPG.1 DATED 08.07.99 16 Apr 97 To Dec 97 1,27,30,865 43,18,192 2. The main issues on which the above show cause notices were issued were: (i) whether the shore tank receipt quantity of M/s. IOCL, BPCL and HPCL as shown in ex-bond bills of entry to be taken for calculation of the duty or the quantity which have been indicated on the invoices and the bills of lading, is to be considered for charging Customs duty. (ii) whether the actual freight and insurance amount to be included in the value of goods i.e. Crude Oil. (iii) whether interest as per Section 18(3) of the Customs Act, 1962 is leviable on the amount of the duty finalize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated in the summary sheet of the annexure, which is indicated below: (a) BPCL : Rs. 1,83,50,035.00 (b) HPCL : Rs. 84,94,296.00 (c) IOCL : (-) Rs. 5,15,512.00 3. The interest on the above amounts shall be charged under section 18(3) read with Section 28aa of the Customs Act, 1962, from the date of provisional assessment till the actual date of payment of duty so determined as at above." 2.2 The department has challenged the above mentioned order-in-original dated 11.03.2013, on the ground that Adjudicating Authority has erred in taking the transaction value as envisaged in CBEC Circular No. 6/2006 dated 12.02.2006 i.e. quantity of Crude oil taken on the basis of shore tank quantity was not correct and actual. The invoices/ bills o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also decided that interest under Section 18(3) of Customs Act, 1962, after finalization of the provisional assessment is also not applicable as the Section 18(3) inserted on 13.07.2006, the Commissioner (Appeals) has also supported the point of view with case law of Sterlite Industries India Limited reported in 2008 (223) ELT 633 (Tri. Chennai) as well as Hon'ble Gujarat High Court order in Tax Appeal No. 1992/2010 filed by M/s. Goyal Traders etc. The appellants are before us against the above mentioned order-in-appeal dated 21.10.2013. 3. We have heard both the sides and perused the record of the appeal in detail. 4. It can be seen from the preceding paras that the only issue which needs to be addressed by us is whether the duty at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mills Ltd. v. Union of India, 1999 (8) SCC 744 = 1999 (113) E.L.T. 358 (S.C.), stated that this takes place, as follows :- "It was further submitted that in the case of Apar (P) Ltd. [(1999) 6 SCC 117 = JT (1999) 5 SC 161] this Court was concerned with Sections 14 and 15 but here we have to construe the word "imported" occurring in Section 12 and this can onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 imported is to be looked at for the purposes of valuation. Fourthly, the basis of the judgment of the Tribunal is on a complete misreading of Section 14 of the Customs Act. First and foremost, the said Section is a section which affords the measure for the levy of customs duty which is to be found in Section 12 of the said Act. Even when the measure talks ..... X X X X Extracts X X X X X X X X Extracts X X X X
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