TaxTMI 
TaxTMI 
2025 (6) TMI 612
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....the case are that during the period April 2006 to March 2007, the Appellant imported 52 consignments of Petroleum Crude Oil at the Port of Sikka and sought clearance thereof by filing the following Bills of Entry: No. Bills of Entry No. Date of Bill of Entry 1. F-03 04.04.2006 2. F-05 07.04.2006 3. F-06 07.04.2006 4. F-07 07.04.2006 5. F-11 12.04.2006 6. F-13 15.04.2006 7. F-18 21.04.2006 8. F-25 26.04.2006 9. F-27 29.04.2006 10. F-31 03.05.2006 11. F-33 05.05.2006 12. F-39 12.05.2006 13. F-48 18.05.2006 14. F-49 18.05.2006 15. F-62 09.06.2006 16. F-63 09.06.2006 17. F-68 14.06.2006 18. F-80 01.07.2006 19. F-89 08.07.2006 20. F-95 12.07.2006 21. F-97 13.07.2006 22. F-103 21.07.2006 23. F-107 26.07.2006 24. F-111 28.07.2006 25. F-113 29.07.2006 26. F-156 05.09.2006 27. F-174 21.09.2006 28. F-177 26.09.2006 29. F-180 29.09.2006 30. F-182 03.10.2006 31. F-184 05.10.2006 32. F-161 12.09.2006 33. F-183 05.10.2006 34. F-194 12.10.2006 35. F-186 06.10.2006 36. F-08 08.04.2006 37. F-064 10.06.2006 38. F-078 29.06.2006 39. F-416 01.03.2007 40. F-019 22.04.2006 41. F-1....
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....issioner. By common Order-in-Appeal No. JMN-CUSTM-000-APP-197 to 248-23-24 dated 28.02.2024, the Commissioner (Appeals) rejected all the 52 appeals filed by the Appellant. Aggrieved by the order, appellants have preferred the present appeals. 2. Learned Advocate appearing for the appellant submits that finalization of provisional assessment made in the years 2006 & 2007 after 16 years is vitiated by unreasonable delay and is liable to be set aside on this ground itself. 2.1 In support of aforesaid submission, he cited the decision of Hon'ble High Court in the case of Bihar Foundry & Castings Ltd v UOI and ors- 2024-TIOL-543-HC, in which it has been held that finalization of provisional assessments after 6 to 9 years is vitiated by unreasonable delay and barred by limitation. The Hon'ble High Court has held that it is settled law that where no limitation period is prescribed, a reasonable period of limitation applies. It held that as per Para 3.1 of Chapter 7 of CBIC Manual of Instruction, reasonable period for finalization of provisional assessment is 6 months and that the said CBIC Instruction is binding on the department. The Hon'ble High Court has accordingly held ....
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....e aforesaid submissions, in any event, the said decision of the Hon'ble Tribunal in Shakti Beverages Ltd v CC-2003 (153) ELT 445 was rendered when the Customs (Finalization of Provisional) Assessment Regulations 2018 were not in force, whereas in the present case when the assessments were finalized, the said Regulations were in force. Regulation 5 of the said Regulations stipulates the time limit of 2 months from the date of receipt of Test report and submission of documents. Since the Test Reports were received long back in 2006 and 2007 and the documents were also submitted in 2006 and 2007, in any event, the assessment should have been finalized within 2 months from the coming into force of the said Regulations. Reliance is placed in this behalf on the decision of Hon'ble Punjab and Haryana High Court in the case of Harkaran Dass Vedpal v UOI-2019 (368) ELT 545. 2.6 Without prejudice to the aforesaid submissions, in any event, in respect of 13 Bills of Entry, out of the aforesaid 52 Bills of Entry, two Show Cause Notices dated 29-11-2007 and 11-2-2008 were issued proposing addition of ship demurrage charges to the assessable value of the goods. The said two show cause n....
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....ll on board the ship, when the taxable event has not occurred. The taxable event occurs only in respect of the quantity discharged from the vessel. Department's Civil Appeal No 1098 of 2001 against the said decision of the Hon'ble Tribunal has been dismissed by Hon'ble Supreme Court by Order dated 20-2-2002 as reported in 2002 (142) ELT A280 (SC). 2.11 Merely because the Ship's Ullage report quantity is marginally higher than the Bill of Lading quantity, it cannot be said that this higher quantity was imported unless it is shown that the quantity actually received in the Shore tank was the same as the ullage quantity. The Ship's ullage quantity represents the quantity on the Ship at the point of time before discharge from the ship and does not represent the quantity actually received in the hands of the importer. 2.12 Reliance placed by the Commissioner (Appeals) on the decision in case of Mangalore Refinery and Petrochemicals Ltd v CCE 2015 (323) ELT 433 (SC) is misplaced as this decision does not in any way advance the department's case. The said decision nowhere lays down that duty is to be assessed on the ship ullage quantity. On the contrary, the said decisio....
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.... 2006 and 2007. As laid down by the Hon'ble Supreme Court in the case of Suchitra Components Ltd v CCE 2007 (208) ELT 321 (SC), a Circular which is adverse to the importer cannot apply retrospectively. For the period prior to 26-7-2016, CBEC Circular No.6/2006-Cus dated 12-1-2006 was applicable, as per which in all cases where customs duty is leviable on ad valorem basis, the assessment of bulk liquid cargo should be based on invoice price, which is the price paid or payable for the imported goods, i.e., transaction value, irrespective of quantity ascertained through shore tank measurement or any other manner. They rely on the decision of this Tribunal in the case of Asian Solvochem P. Ltd vs CC-2023 (7) TMI 217-CESTAT AHMEDABAD which held that for imports prior to 26-7-2016, the applicable Circular will be Circular No.6/2006 and not Circular No.34 of 2016. 2.16 Even assuming while denying that the Ship Ullage quantity can be taken as the quantity actually imported, the marginal excess in Ship Ullage quantity cannot result in liability to higher duty when the price paid to the supplier is not increased proportionate to such marginal excess. In the present case, the quantity as....
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....Quantity at the Port of Discharge, as reflected in the Surveyor's Report relying upon the decision of Hon'ble Supreme Court in the case of Mangalore Refinery & Petrochemicals Ltd Vs C.C., Mangalore (2015 (323) ELT 433 (SC). The appellant's contention was that the Bills of Entry was required to be finally assessed considering quantity shown in Bills of Lading instead of ship's ullage quantity. 3.1 On receipt of original documents from the importer and test report from the Chemical Examiner, CRCL, Kandla, the Bills of Entry were finally assessed considering the Ship's Ullage Quantity at the Port of Discharge, as reflected in the Surveyor's Report relying upon the decision of Hon'ble Supreme Court in the case of Mangalore Refinery & Petrochemicals Ltd Vs C.C., Mangalore [2015 (323) ELT 433 (SC). 3.2 The present issue has already been decided on merits by Ahmedabad Tribunal in appellant's own case reported at (2023) 13 Centax 77 (Tri. Ahmd.) wherein the Tribunal relying upon the decision of Hon'ble Supreme Court in the case of Mangalore Refinery & Petrochemicals Lid Vs C.C., Mangalore (2015 (323) ELT 433 (SC)] had upheld the decision of Commissioner (A....
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....From the plain reading of above Para, it is clear that there is direction to continue the assessment as per Ship's Ullage Report at the Port of Discharge. Therefore, contention of the appellant that instruction to adopt ship ullage quantity for assessment of liquid bulk cargo was for the first time contained in Circular No. 34/2016, dated 26.07.2016 is not legally correct and tenable. 3.5 The appellant have also contended that there is unreasonable delay of 16 years in finalizing the provisionally assessed Bills of Entry and the assessment is required to be set aside. The Appellate Authority has gone through the decision of Larger Bench of the Hon'ble Tribunal in the case of Shakti Beverages Ltd Vs Commissioner of Customs, Mumbai (2003 (153) ELT 445 (Tri -LB)), wherein the Larger Bench has considered the issue whether the Tribunal can annul a proceeding for finalizing a provisional assessment on the ground of delay. After considering the decision of Hon'ble Supreme Court in the case of Raghuvar (India) Ltd [2000 (118) ELT 311 (SC) relied upon by the appellant, and other decisions of Hon'ble Apex Court namely Miles India Ltd. v. Astt. Collector [1987 (30) ELT 641 (S....
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....8 Dtd.11.02.2008 OIO No. 19/AC/CHS/2017-18 Dtd.05.04.2018 2. F-064 10.06.06 408/FAO/CHS/2022-23 Dt.29.12.2022 3. F-078 29.06.06 408/FAO/CHS/2022-23 Dt.29.12.2022 4. F-328 20.12.06 408/FAO/CHS/2022-23 Dt.29.12.2022 5. F-396 14.02.07 408/FAO/CHS/2022-23 Dt.29.12.2022 6. F-416 01.03.07 408/FAO/CHS/2022-23 Dt.29.12.2022 7. F-459 23.03.07 320/FAO/CHS/2022-23 Dt.07.12.2022 SCN No. VII/48-Demand/28/T/2007-08 Dtd.29.11.2008 OIO No. 20/AC/CHS/2017-18 Dtd.05.04.2018 8. F-146 29.08.06 312/FAO/CHS/2022-23 Dt.07.12.2022 9. F-167 15.09.06 313/FAO/CHS/2022-23 Dt.07.12.2022 10. F-218 30.10.06 314/FAO/CHS/2022-23 Dt.07.12.2022 11. F-327 19.12.06 315/FAO/CHS/2022-23 Dt.07.12.2022 12. F-347 11.01.07 317/FAO/CHS/2022-23 Dt.07.12.2022 13. F-360 20.01.07 318/FAO/CHS/2022-23 Dt.07.12.2022 It was thus clarified that 13 bills of entry were not finalized under the two OIO's dated 05.04.2018 which decided the issue of inclusion of demurrage charges in the assessable value of the goods by dropping the proposal made in the SCNs. The 13 bills of entry were finalized under separate Final Assessment Order....
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....of the party by dropping the proceedings vide two orders-in-original both dated 05.04.2018. These were unrelated to the issue in hand which is related to provisional assessment which were on the basis of quantity and chemical analysis of the product. That both the series of show cause notices were on different legal propositions and there was no bar on issuance of either. The advocate for the appellant however is of the view that res-judicata will apply in relation to these 13 Bills of Entry out of 52 which were subjected to provisional assessment like any other. In 2018, adjudication has been done in respect of provisionally assessed 13 Bills of entry which were for the reason of demurrage. The same Bills of Entry cannot now be subjected to re-adjudication for the reason of res-judicata. It is also stated by the appellants that there is an inordinate delay for finalizing the remaining provisional assessments, which have vitiated the proceedings as they were not allowed their right to defend. He sought to rely on the decision of Bihar Foundry & Castings Ltd. vs UOI & Ors. reported at 2024-TIOL-543-HC that reasonable period of limitation has to be read in, when nothing has been pres....