https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=772499 https://www.taxtmi.com/caselaws?id=772499 Assessments of imported Petroleum Crude Oil consignments - quantity to be assessed shall be as per the Ship Ullage Quantity at the port of discharge as referred to in the surveyor report or as per the bill of lading quantity? - delay in finalizing the provisional assessment. Assessments of imported Petroleum Crude Oil consignments - quantity to be assessed shall be as per the Ship Ullage Quantity at the port of discharge as referred to in the surveyor report or as per the bill of lading quantity? - HELD THAT:- The matter has been covered vide final order No. 12380/2023 dated 21.10.2023 wherein this Tribunal relying upon the decision of Hon'ble Supreme Court in the case of Mangalore Refinery and Petrochemicals Ltd. vs CCE [2015 (9) TMI 245 - SUPREME COURT] had upheld the decision of Commissioner (Appeals). While dismissing appeals of the present appellant, it held that assessment has to be done at ship ullage surveyor report at the port of discharge and had dismissed the appeal filed by the appellants. There is no reason to depart from the earlier decision of this Tribunal which is in favour of Revenue. Thus, as per this decision as far as merits is concerned even for the impugned period, the issue will be decided on the basis that it is the ullage quantity at the discharge port and not the bill of lading quantity that will be the decisive factor. Whether there was delay in finalizing the provisional assessment, as has been stated by the appellant? - HELD THAT:- Regulation 5 of the said Regulation stipulates a time of 2 months from the date of test reports. There is a force in the arguments of delay advanced by the learned advocate. The learned Adjudicating authority has relied upon the decision of Shakti Beverages which is not beyond the High Court's decision in Bihar Foundry [2024 (3) TMI 371 - JHARKHAND HIGH COURT]] and the fact that the Customs (Finalization of Provisional Assessment) Regulations, 2018 have come into existence on the date when assessments were finalized. Also that the decision of the Hon'ble High Court in the matter of Bihar Foundry was not looked into in details by the learned adjudicating authority. Further, it is found that the question of delay is always a question of fact and has to be looked into from the prism of as to whether any delay was attributed to the party also or was exclusively on the part of the department. In the later case, the appellants cannot be allowed to take the benefit of delay which is attributed to them. However, while there are prima facie delay has taken place but it is not forth coming whether it was exclusively due to inaction of the department or was contributed to some extent or the other, by the party also. This question of fact needs redetermination. Conclusion - i) The assessments finalized after 16 years raise serious concerns of unreasonable delay and prejudice, requiring remand for fresh factual determination of delay attribution and prejudice. ii) The assessment of bulk liquid cargo quantity must be based on actual quantity received (shore tank quantity) and not merely on ship's ullage quantity; marginal variations within tolerance limits do not attract additional duty. iii) The principle of constructive res judicata does not bar fresh proceedings on provisional assessment issues distinct from those adjudicated earlier on demurrage charges. Matter remanded back to the adjudicating authority to look into the matter afresh with all its factual matrix to arrive at the question of delay and to whom it was attributable - Appeals are partly allowed as conditional remand. Case-Laws Customs Tue, 03 Jun 2025 00:00:00 +0530