Variation in Factory weight & Draft survey in Export of bulk cargo.

[vinay wakde]

We are Exporting Iron Ore Fines (bulk loose cargo Approx. 50,000 MTs) under Letter of undertaking. The material removed from factory to  jetty under cover of Invoice.The material thereafter sent  to highseas through Mini bulk carriers (MBCs) for unloaded into the Mother Vessel. After completion of loading Draft survey of Mother vessel is done at highseas in presence of Customs officers. We have observed quantity variation as per the draft survey report & factory weightment, which is more than 1% of total cargo removed from the factory. We have received letter from Excise Department for payment of duty to the extent of quantity found short. 

Is there any CESTAT judgement to justify the variation of two different weighment system.    

Regards,

VINAY

[YAGAY andSUN]

In Hindustan Zinc v CCE (2009 (3) TMI 684 - CESTAT, NEW DELHI) = (2004) 241 ELT 263 (CESTAT), It was held that meager differences in quantity due to difference in weighing scale, loss due to transit, evaporation etc. are to be ignored and reversal of CENVAT credit is not required - same view in Sayaji Sethness v CCE (2009 (4) TMI 574 - CESTAT, AHMEDABAD) =  (2009) 241 ELT 269 (CESTAT SMB).

In CCE v Bhuwalk Steel Industries   (2009 (11) TMI 177 - CESTAT, CHENNAI [LB]) = (2010) 24 STT 436 = 249 ELT 218 (CESTAT 3 member bench), it has been held that tolerances in respect of hygrscopic, volatile and such other cargo has to be allowed as per industry norms, excluding, however, unreasonable and exorbitant claims.  Similarly, minor variation due to weighmet by different machines will also have to be ignored if such variations are within normal limits.

Each case has to be decided according to merit and no hard and fast rule can be laid down with different kind of shortages, Various factors like:-

1. whether inputs were diverted en-route,
2. whether goods are hygroscopic or are amenable to transit loss
3. whether difference in weighment is within tolerance limits with reference to Standards of weights and Measures Act (Now legal Meterology Act)
4. whether the goods contain countable number of pieces and packages
5. whether recipient assessee has claimed compensation for shortage from supplier, transporter or insurer etc.have to kept in view in deciding a case.

This issue was reffered to large bench for adjudication.

[YAGAY andSUN]

Shortage of 1% to 2% due to weighbridge differences are permissible. Estee Auto Pressings v CCE (2006 (11) TMI 79 - CESTAT, CHENNAI)= (2007) 209 ELT 211 (CESTAT SMB) - relying on Neera Enterprises v CCE (1998 (5) TMI 119 - CEGAT, NEW DELHI)= (1998) 104 ELT 382 (CEGAT).