TaxTMI 
TaxTMI 
2023 (3) TMI 843
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.... of Mangalore Refinery & Petrochemicals- 2015 (323) ELT 433 (S.C) and relying on the said judgment this Tribunal in the appellant's own case also allowed the appeal holding that in the facts of the case the Customs duty is leviable on the actual receipt of the shore tank quantity and not on the basis of invoices. She also placed reliance on the following judgments and board circulars:- • Mangalore Refinery & Petrochem - 2015 (323) ELT 433 (SC) • Mangalore Refinery & Petrochem - 2006 (205 ) ELT 753 (Tri.) • Mangalore Refinery & Petrochem - 2006 (233) ELT 528 (Tri.) • Mangalore Refinery & Petrochem - 2014 (307) ELT 119 (Tri.) • Bharat Petroleum Corporation - 2017 -TIOL-2316-CESTAT-AHM • M.F.C.A.(D.R) Circular No. 96/2002 - Cus dated 27.12.2002 [2003 (151) ELT T-21 • M.F.(D.R.) Circular No. 6/2006 - Cus dated 12.01.2006 [ 2006 (193) ELT T-40 • Circular No. 34/2016- Cus dated 26.07.2016 3. Shri. G. Kirupanandan, Learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made....
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....orted goods may, at any time before an order for clearance of goods for home consumption under section 47 or an order for permitting the deposit of goods in a warehouse under section 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon." Section 47. Clearance of goods for home consumption.- (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. (2) Where the importer fails to pay the import duty under sub-section (1) within two days, excluding holidays from the date on which the bill of entry is returned to him for payment of duty, he shall pay interest at such rate, not below ten per cent and not exceeding thirty-six per cent per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette on such duty till the date of payment of said duty : Provided that the Central Government....
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....id goods even after they have physically landed at any port in India but before any of the aforesaid orders have been made. This again is for the good reason that the act of importation is only complete when goods are in the hands of the importer after they have been cleared either for home consumption or for deposit in a warehouse. Further, as per Section 47 of the Customs Act, the importer has to pay import duty only on goods that are entered for home consumption. Obviously, the quantity of goods imported will be the quantity of goods at the time they are entered for home consumption. 11. Even under Section 14 of the Customs Act, when goods are to be valued for the purpose of assessment, such valuation is only when the goods are ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade. It is thus seen that under the Customs Act, the levy of import duty cannot take place until goods are imported, that is, brought into India. Obviously, therefore, it is the quantity of goods brought into India alone that attracts the levy of import duty. 12. The Customs Valuation Rules which defines "transaction val....
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....r freight Station shall not be included in the cost of transport referred to in clause (a)." 13. This Rule merely restates what is already stated in Section 14, namely, that the value of imported goods has to be the value of such goods for delivery only at the time and place of importation. Therefore, it is clear that even a reading of "transaction value" under the Rules would necessarily arrive at the same result, namely, that the quantity of goods to be seen for purposes of valuation can only be after they are imported, that is, brought into India and have to be so at the time and place of importation. 14. The Tribunal's judgment dated 6th February, 2006 gives several reasons for arriving at the conclusion that the bill of lading quantity alone is to be looked at for the purpose of determining the value of goods imported. The first reason that it gives is that duty has to be on the total payment made by the assessee irrespective of the quantity received. The second reason given is that an ad valorem duty would necessarily lead to this result but duty levied at the specific rate would not, the quantity of goods in the latter case being only on the basis of the qu....
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....he taxable event in the case of a purchase tax is the purchase of goods. The quantity of goods stated in a bill of lading would perhaps reflect the quantity of goods in the purchase transaction between the parties, but would not reflect the quantity of goods at the time and place of importation. A bill of lading quantity therefore could only be validly looked at in the case of a purchase tax but not in the case of an import duty. Thirdly, Sections 13 and 23 of the Customs Act have been wholly lost sight of. Where goods which are imported are lost, pilfered or destroyed, no import duty is leviable thereon until they are out of customs and come into the hands of the importer. It is clear therefore, that it is only at this stage that the quantity of the goods imported is to be looked at for the purposes of valuation. Fourthly, the basis of the judgment of the Tribunal is on a complete misreading of Section 14 of the Customs Act. First and foremost, the said Section is a section which affords the measure for the levy of customs duty which is to be found in Section 12 of the said Act. Even when the measure talks of value of imported goods, it does so at the time and place of importation....
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....irit and high speed diesel and cleared the same through Kandla Port. They had filed into-Bond Bills of Entry and the imported consignments were stored in warehouse without payment of duty u/s 58 of the Customs Act, 1962. The same were later allowed clearance against Ex-bond Bills of Entry for home consumption. 3. She submits that there are two issues involved in the present Appeals. The first issue is, whether duty is payable on the imported goods on the basis of shore tank quantity or on the transaction value based on the invoices of the overseas supplier. The second issue is, whether additional duty of Rs.2/- per litre under Finance Act has to be included in the basic customs duty for the purpose of calculation of CVD on the imported petroleum products. She submits that the first issue is now settled in their favour by the Hon'ble Supreme Court in recent judgment in the case of Mangalore Refinery & Petrochemicals Ltd. - 2015 (323) ELT 433 (SC). Regarding the second issue, she fairly submits that this Tribunal in the case of Indian Oil Corporation Ltd. vs. C.C., Kandla vide order No.A/10965/2015 dated 07.7.2015 following the earlier judgment in the case of Hindustan Petro....