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TMI Blog2001 (3) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... observance of relevant provisions of the Customs Act, 1962 and other instructions issued by the Government of India from time to time; and also specify the limits of Customs area at Dharamtar Port as indicated in Column No. 6 of the said schedule to which the provisions of the said Act shall apply. SCHEDULE Sr. No. Name of the Port Unloading/ loading Place Place of anchorage (Mother Ship) Area Limit (1) (2) (3) (4) (5) (6) 1. Dharamtar Dharamtar - 260 m × 120 m = 31980 Sq Mtr 18-42'-4" N 73-01'-6.75"E 18-42'-2.75"N 73-01'-7.25"E 2. Bombay - BFL 4 miles radius 18 55'N 72 43.5'E 18 58'N 72 43.5'E 18 59'N 72 37'E 18 55'N 72 37'E Attested Sd/- (K. SANJEEVA) ASSTT. COLLR. (POLICY) CUSTOMS (P) M P WING, BOMBAY Sd/- (M.G. VENUGOPALAN) COLLECTOR OF CUSTOMS (PREVENTIVE) BOMBAY 2.The vessels carrying such iron ore from overseas port could not dock at Dharamtar due to lack of draft. Such vessels were therefore, allowed to be anchored at the Bombay Floating Light (BFL). The cargo w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs Act, 1962 permitting clearance of goods for home consumption was passed before the discharge of cargo from the mother vessel to the barges. However, as the assessment was provisional, the out of charge order for home consumption was not final. Therefore, the import cannot be said to have completed unless the goods reached the landmass of India. The transport charges incurred in relation to carrying of the goods in barges are, therefore, to be included in the assessable value. In view of this, I do not find any merit in the appeal and reject the same." 4.In deciding the complex question of law involved in this case, the orders of the Commissioner (Appeals) are of no assistance. The order of the Asstt. Commissioner also does not throw any light as to the ground on which the charges are included. In the letter dated 7-2-1995 referred to above of the Customs Valuation Rules were extensively quoted. It was claimed that in terms of Rule 9(2)(b), the charges of transportation from the mother vessel were for "loading, unloading and handling for the delivery for the importation" and therefore would warrant inclusion. We would take this as the charge and the ground for confirma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we would not like to remit the proceedings back. We find the point of law to be interesting and would proceed to settle it. 9.The first issue for decision is as to at which spot does the "import" takes place. In other words what the "place of importation" is. In the appeal memorandum great reliance has been placed on the judgment of the Bombay High Court in the case of Apar [1985 (22) E.L.T. 644]. In this judgment it was held that as soon as the goods entered the territorial waters of India, the import was said to have taken place. The judgment was overruled by the Supreme Court [1999 (112) E.L.T. 3 - page 6]. In the judgment in the case of Garden Silk Mills [1999 (113) E.L.T. 358], the Supreme Court held that the import of goods to India commences with the arrival of the vessel in the territorial waters of India but is completed only when the goods are placed on the warf so as to become part of the mass of the goods within the country. 10.Shri Jain time and again claimed that the place of importation was BFL and the act of import was complete when the ore was unloaded in the barges. In fact he equates the barges to the landmass of India and submits that the charges for subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or penalty on the ship owner in the case of non-landing or short landing of cargo. In the case of bulk cargo such as oil, ore, the quantity loaded is given in the invoice. On arrival of the vessel a draft survey is made and quantity is ascertained. The quantity of the goods after being unloaded from the ship where possible is also ascertained. There have been disputes in the past whether in such a situation for verification of the invoice quantity, the draft survey quantity should be taken or whether the actual quantity landed should be taken. In the judgments reported in 2001 (130) E.L.T. 139 (Tribunal) = 2000 (41) RLT 414 (C.C., Vishakapattanam v. Hindustan Petroleum Corpn.) and 2000 (121) E.L.T. 109, it was held that the quantity actually available on landing should be taken in preference over draft survey report. 15.Shri Jain attempted to support the argument that the BFL was the place of importation by stating that the "out of charge" order was given by the proper officer while the goods were still at BFL in the mothership before being unloaded in the barges. We need to examine this statement. 16.Section 46 of the Act requires an importer to file a Bill of Entry either for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibing the charge incurred for carriage by the barges, but insists that it should be included. In the finalisation Show Cause Notices the ground shown is "barge charges, difference in freight charges" (Show Cause Notice dated April, 1998). In the other show cause notice issued in July, 1998 the only description is "barge charges". In his order the Assistant Commissioner dealt at length on the coverage of Section 14 of the Act. He held that the place of importation was Dharamtar and not BFL. He referred to a number of other sections and confirmed the duty but without putting any label on the charges that is, whether they were freight charges or they were landing charges. The Order now impugned before us, as we have earlier observed, does not clarify this position. We are therefore forced to examine both the possibilities. 21.The Show Cause Notice for finalisation termed the expenses as 'freight'. 22.The submission is made that the goods by virtue of their having been cleared at BFL ceased to be "imported goods " and therefore the charges cannot be termed as freight. We have earlier held that the goods become imported goods not at BFL but at Dharamtar Jetty and therefore this subm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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