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TMI Blog2024 (11) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... ? - Whether, when the quantity ascertained as per Ship Ullage measurement at Port of Discharge is only marginally in excess of the Bill of Lading and Invoice quantity by 0.30%, whether extra duty on such marginal excess is payable, when the transaction value remained unchanged. HELD THAT:- We find that irrespective of any dispute raised by the department by issuing a show cause notice and further proceedings against the refund order, but the fact remains that the refund has arisen out of the final order on bill of entry passed by the assessing authority and due to which the refund was rightly sanctioned by the sanctioning authority. It is also a fact on record that the Revenue has not challenged the final assessment order which is the genes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of assessments. b) Whether, in any event, in the case of import of Liquid Bulk Cargo viz. Petroleum Crude Oil, the quantity as per Ship Ullage measurement at Port of Discharge can be taken to be the quantity imported for assessment of duty although it does not represent the actual quantity unloaded in India. c) Whether, in any event, when the quantity ascertained as per Ship Ullage measurement at Port of Discharge is only marginally in excess of the Bill of Lading and Invoice quantity by 0.30%, whether extra duty on such marginal excess is payable, when the transaction value remained unchanged. 2. Shri J C Patel learned counsel appearing on behalf of the appellant, at the outset, submits that the refund has arisen out of the final asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further proceedings against the refund order, but the fact remains that the refund has arisen out of the final order on bill of entry passed by the assessing authority and due to which the refund was rightly sanctioned by the sanctioning authority. It is also a fact on record that the Revenue has not challenged the final assessment order which is the genesis for granting the refund. In such situation the entire proceeding of issuing a show cause notice, adjudication and passing the appellate order, in our view is clearly infructuous. Therefore, on this ground itself, the impugned order passed by learned Commissioner (Appeals) is not sustainable.This issue has been considered in various judgments including the judgment of Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of classification reported in Dalmia Industries case (supra), this appeal must fail for this reason alone. 3. The appeal is dismissed. 4. C.A. Nos. 1567/93 and 2482-84/93-The submission of the learned Additional Solicitor General is that the expression 'skimmed milk' also includes partially skimmed milk and for this reason the product should be classified under Heading 0401.13. In the impugned judgment the view taken is that partially skimmed milk powder' is a separate marketable commodity from 'skimmed milk powder' and, therefore, it has to be classified under the Heading 0401.19 and not 0401.13 as claimed by the Revenue. In the impugned judgment, detailed reasons are given for rejecting the Revenue's conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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