AI Drafter 
TaxTMI 
TaxTMI 
1990 (3) TMI 189
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....ght paid by the importers included landing charges also and such charges if they had to be paid should have been paid by the shippers who carried the goods. Another point raised by Shri Ganesh was that the Customs not having given a notice for inclusion of wharfage charges in the assessable value and the Collector (Appeals) having given a clear finding that wharfage charges do not form part of the assessable value, the Department should not be allowed to include wharfage charges in the assessable value at this stage. The appellants in all these cases imported small consignments consisting of raw materials and these imports took place through regular shipping lines. The learned Advocate submitted that these goods were landed and delivered by the shipping companies without any extra charges as freight including landing charges, and payment if at all necessary, for using the docks' equipment, was paid by the shipping company. The learned Advocate submitted that wharfage charges are levied only when warranted under circumstances like the importers keeping their goods too long in the wharf but landing charges were being collected on the basis of a fixed percentage in the case of all imp....
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....was not done). He further relied on a judgment of the Karnataka High Court in B.S. Kamath & Co. and Others v. Union of India and Others reported in 1986 (24) E.L.T. 456 (Kar.) and submitted that the High Court clearly held that landing charges were to be included in the assessable value. 5. Shri Naik then submitted that at no stage was it the case of the appellants that the freight paid by them to the shippers included landing charges. He emphasised that no documents have been placed by the appellants before the Customs or the Tribunal to show that freight paid by them included landing charges. 6. Shri Naik accepted that the question of including wharfage charges as distinct from landing charges cannot be agitated now as it was not the case of the Customs at any stage. Reiterating that landing charges worked out on the percentage of the value should be added to the assessable value, Shri Naik relied, especially, on a judgment of the Gujarat High Court in Prabhat Cotton and Silk Mills Ltd. v. Union of India reported in 1982 E.L.T. 203 Gujarat. He cited two other judgments with the same ratio. 7. In his rejoinder Shri Ganesh submitted that in the decisions cited by the learn....
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....s no doubt because in several judgments beginning with Prabhat Cotton & Silk Mills Ltd. (supra) it has been consistently held that landing charges form part of the assessable value. Therefore, for deciding these matters we have only to decide whether the appellants' plea that freight included landing charges is sustainable and whether calculating landing charges as a percentage of the value is correct. 10. A perusal of the refund application (Form A with its enclosures) revealed an interesting situation. In the working sheet attached the calculation for refund amount due was arrived at as follows : "Working Sheet 12 Pallets & 1 Carton s.t.c. Natural Fossil Wax Antilux-654 Duty B/E Cash No. HD-848 dtd. 9-12-1986 Landing charges as per B/E ... Rs. 918.00 Actual Wharfage charged by BPT .... Rs. 81.11 Difference Rs. 836.89 Dutypaidon Rs.836.89 at 60% .. Rs. 502.13 Plus 40% .. Rs. 334.76 Plus 20% .. Rs. 334.76 Refund amount due Rs. 1171.65 " This makes it quite clear that the appellants wanted the landing charges to be taken as actual wharfage charged by the BPT. In the grounds of claim wh....
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.... Trust has denied that it imposes any landing charges upon goods imported". However, when specifically asked by the Bench, whether they could substantiate this statement, the appellants could not do so. Therefore, the appellants' case has to fail for want of evidence. 12. We gave careful thought to Shri Ganesh's submissions that it was upto the Customs to show that freight did not include landing charges. A principle advanced by Shri Ganesh himself, namely that a negative need not be proved and cannot be proved applies equally to this situation also and more justly because, CIF value includes freight and freight only and not landing charges. Further, when the appellants sought relief, it was upto them to prove their claim; Customs need not go fishing for evidence. Besides, over a long period in all the Ports of India landing charges have been calculated as a percentage of CIF value. Such calculation is not whimsical or arbitrary. Several reasons are there for such a practice continuing over so many decades without being seriously challenged. One reason is that the procedure for ascertaining the actual landing charges would in most cases cost more to the importers as well as the ....