Tribunal rejects appellant's claim for duty adjustment, orders provisional assessment based on invoice value, excludes demurrage charges.

The Tribunal upheld the respondent's view, rejecting the appellant's claim for adjustment of excess duty payment against short payment. The finalization of provisional assessment was ordered to be based on invoice value, excluding demurrage charges from the assessable value. The appeal was disposed of with modifications, including the re-examination of specific issues arising from Bills of Entry by the original authority.

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Issues Involved:
1. Adjustment of excess payment of duty against short payment.
2. Basis of assessment: invoice value vs. shore tank quantity.
3. Inclusion of demurrage charges in the assessable value.
4. Minor grievances regarding specific Bills of Entry and duty calculations.

Issue-wise Detailed Analysis:

1. Adjustment of Excess Payment of Duty Against Short Payment:
The appellant argued that the excess payment of Rs. 9.85 crores should be adjusted against the differential duty demand of Rs. 43.27 crores. They relied on the Tribunal's decision in M/s. Apar Industries Ltd., which allowed such adjustments when all Bills of Entry were finalized by a common order. However, the respondent contended that such adjustments were not permissible under the law, emphasizing the need for independent assessment of each Bill of Entry and the requirement to file a refund claim under Sec.27 of the Customs Act. The Tribunal upheld the respondent's view, citing the Larger Bench decision in Excel Rubber Ltd., which disallowed clubbing of different clearances for finalization of provisional assessments and required separate refund claims for excess payments. Consequently, the Tribunal rejected the appellant's claim for adjustment.

2. Basis of Assessment: Invoice Value vs. Shore Tank Quantity:
The appellant contended that the assessment should be based on the shore tank quantity rather than the invoice value, citing CBEC Circulars and past practices. However, the Tribunal noted that this issue was not raised in the Memo of Appeal and therefore could not be considered. The Tribunal emphasized that the finalization of provisional assessment should be based on the invoice value.

3. Inclusion of Demurrage Charges in the Assessable Value:
The appellant argued that demurrage charges should not be included in the assessable value, relying on the Tribunal's Larger Bench decision in Indian Oil Corporation Ltd., which was affirmed by the Supreme Court. The respondent cited contrary decisions and a Board Circular instructing the inclusion of demurrage charges. The Tribunal sided with the appellant, holding that demurrage charges are extraordinary expenses and should not be included in the assessable value, in line with the Indian Oil Corporation Ltd. decision.

4. Minor Grievances Regarding Specific Bills of Entry and Duty Calculations:
The appellant raised specific grievances regarding certain Bills of Entry, including incorrect inclusion of a Bill of Entry not pertaining to them, consideration of crude sent to other ports, and clearance under DEEC. The Tribunal acknowledged these grievances and directed the original authority to re-examine and decide upon these issues in accordance with law and principles of natural justice.

Conclusion:
The Tribunal ordered the following:
(a) Finalization of provisional assessment on the basis of invoice value.
(b) Exclusion of demurrage charges from the assessable value.
(c) Disallowance of adjustment between differential duty and excess payment of duty.
(d) Re-examination of issues arising from specific Bills of Entry by the original authority.

The impugned order was sustained with the aforementioned modifications, and the appeal was disposed of accordingly.

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