TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1005
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....IAL) AND MR. SATENDRA VIKRAM SINGH, MEMBER (TECHNICAL) Shri J.C. Patel, Advocate with Ms. Shilpa Balani & Rahul Gajera, Advocates appeared for the Appellant Shri Sanjay Kumar, Superintendent (AR) appeared for the Respondent ORDER SOMESH ARORA: M/s Reliance Industries Ltd vide Miscellaneous application No. 10429 of 2025 requested for rectification of mistake in the final order No. 10395- 10446/2025 dated 3rd June, 2025 passed by this Tribunal. They had pointed out the following mistakes and requested for rectifying the same: - a) Hon'ble Tribunal in para 5 of it's order has placed reliance on final order No. 12380 of 2023 dated 31.10.2023 passed in their case which in fact has been recalled by the Tribunal by its order dated 25.04.2024, on the ground that the said order dated 31.10.2023 suffered from mistakes apparent from the face of the record. They had raised this point in their appeal which was also noted by the Tribunal. Placing reliance on a recalled order is clearly a mistake apparent in the record. b) Hon'ble Tribunal has not at all considered and given findings on their submissions that quantity as per Ship Ullage Measurement is irrelevant a....
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....g even earlier also and the CBIC vide circular dated 26.07.2016 has just reiterated. Regarding res judicata in respect of 13 Bills of Entry he mentioned that two separate SCNs were issued for inclusion of demurrage charges in the assessable value. This issue was subsequently dropped by the Assistant Commissioner and the said 13 bills of entry were finally assessed in 2022. Therefore, res judicata is not applicable in respect of these 13 bills of entry. 2.1 Matter was heard on 29.07.2025 and vide Misc. Order No. 10569/2025 dated 20.08.2025, this Bench agreed with the contention of the learned Advocate that reliance on Tribunal's order No. 12380 of 2023 dated 31.10.2023 which was recalled by the Tribunal vide its order dated 25.04.2024, was not correct. Regarding 13 bills of entry, this bench found that the learned Advocate had raised point on res judicata but further discussion was not made on that issue. Agreeing with the contention of the applicant, ROM application was partly allowed and the final order No. 10395-10446/2025 dated 3rd June, 2025 was recalled to the above extent. 3. The Matter came up for arguments on 26th August, 2025. Learned Advocate stated that the learned....
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....urt in 2002 (142) ELT A280 (SC) to emphasize that the quantity which comes into shore tanks is relevant for demanding duty. Para 11 and 12 are reproduced below:- "11. We must also note that while the decision of the Chennai Bench of the Tribunal in Cochin Refineries - 1999 (105) E.L.T. 108 takes the view that it is the ullage quantity that is relevant for assessment, its reasoning was based upon the Bombay High Court judgment in Apar Ltd. - 1985 (22) E.L.T. 644. That judgment as we have noted, is no longer good law. The Bench itself has recognised this and referred to the High Court a question of law as to whether it is the ullage survey quantity or the quantity ascertained by dip measurement in the shore tanks. We must note in passing that with respect to that view of the Bench in its order on the appeal of Cochin Refineries that the Bombay High Court judgment in Shaw Wallace v. UOI is binding is incorrect for the reason that we have already pointed out. In the light of this reference application made, the decision of the Chennai Tribunal does not have any precedential value. 12. For these reasons, we are of the view that the order of the Commissioner, that it is....
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....ce documents in respect of 4 Bills of Entry viz. Bills of Entry No. F-31 dated 3.05.2006, F-183 dated 05.10.2006, F-184 dated 05.10.2006 and F-08 dated 08.04.2006. • They are submitting letters in respect of the said 4 Bills of Entry as per which provisional assessment was sought on the ground that the invoice evidencing correct transaction value was not available at the time of import. He also enclosed corresponding letters written to the Department in respect of the said 4 Bills of Entry seeking finalization of the provisional assessment by submitting the required documents. • In respect of 13 Bills of Entry, Show Cause Notices dated 29.11.2007 & 11.02.2008 (marked exhibit 'A' & B of their written submission) were issued for addition of demurrage charges in the value, which were decided by the Deputy Commissioner in 2018 in favour of appellant. In para 3 of these SCNs it is clearly mentioned that for finalization of the provisionally assessed Bills of Entry, M/s. RIL. vide their different letters submitted the Bank Attested Invoices, Bills of Lading, Freight Certificate, Insurance Certificate, C.A. Certificate confirming the freight charges. This shows t....
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.... Mangalore Refinery and Petrochemicals Ltd. Vs CCE 2015 (323) ELT 433 (SC) has been duly applied and considered along with CBEC Circular in the order directed to be rectified and ii) whether 13 out of 52 bills of entry which were ordered to be assessed finally in the value of the goods, after dropping the proposal in the Show Cause Notice to include demurrage charges, result in finalization of these 13 bills of entry so as to attract the civil law concept of res-judicata or debar further finalization on any other issue by the department as per the provision of Customs Act, 1962, which is a sui-generis legislation? 5.1 On the first issue, we find that the department's reliance on the decision of Mangalore Refinery and Petrochemicals Ltd. vs CCE 2015 (323) ELT 433 (SC) is with objective to indicate that it is the actual quantity imported into India and not the bill of lading quantity which shall be the decisive factor for assessment. For ease, the quantity actually received in tanks has been termed as shore tank quantity. We also find that the Circular No. 6/2006 dated 12.01.2006 which was relied upon by the party was held contrary to law. The relevant para 15, 16, 17 and 18 which....
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....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, which again is lost sight of by the Tribunal. And last but not the least, "transaction value" which occurs in the Customs Valuation Rules has to be read under Rules 4 and 9 as reflecting the aforesaid statutory position, namely, that valuation of imported goods is only at the time and place of importation. 17. The Tribunal's reasoning that somehow when customs duty is ad valorem the basis for....
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.... should be taken as the basis for levy of Customs Duty irrespective of whether Customs Duty is leviable at a specific rate or ad valorem basis [including cases where tariff value is fixed under Section 14(2) of the Customs Act, 1962]. 4. Further, where bulk liquid cargo is cleared directly on payment of duty without being pumped in a shore tank, assessment may continue to be done as per ship's ullage survey report at the port of discharge. 5. Difficulties, if any, faced in the implementation of above instructions may be brought to the notice of the Board at an early date. 6. Hindi version follows." 5.3 The party has relied upon Circular No. 06/2006-Cus dated 12.01.2006 which is reproduced below: "Attention is invited to the Board's Circular No. 96/2002-Customs, dated 27-12-2002 [2003 (151) E.L.T. T21] on the above mentioned subject, wherein, it was conveyed that, in the case of bulk liquid cargo imports/whether for home consumption or warehousing, the shore tank receipt quantity should be taken as the basis for levy of customs duty. 2. A doubt has arisen in cases where customs duty is chargeable on ad valorem basis, whether there woul....
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.... be assessed on ad-valorem rates, invoice price is the basis and for specific rate assessment, shore tank quantity was relevant. They also relied upon the decision in the case of CC vs Hindustan Petroleum Corporation Limited 2000 (121) ELT 109 which was approved in 2002 by Apex Court reported in 2002 (142) ELT A 280 (SC) by dismissing the department's appeal. Therefore, it becomes the law of land as on the date of import. While dismissing the departmental appeal it had duly considered Garden Silk Mills Limited vs UOI as reported in 1999 (113) ELT 358 (SC) as well as Kiran Spinning Mills vs CC as reported in 1999 (113) ELT 753 (SC) and had come to the conclusion in para 9, 10, 11 & 12 as reproduced below: "9. Our attention however has been drawn to the Public Notice No. 131 of 17-9-1997 of the Mumbai Custom House. By this amendment, paragraph 11A has been added to the public notice which reads as follows : "The oil companies shall take the shore tank dip measurement in the presence of PO and give a copy of the same to the PO, who will pass on this document to the Appraising officer/oil unit for enabling him carry out the assessment and determine the duty liability.....
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.... submission of the appellant that the imported quantity as per the aforesaid decision of Hindustan Petroleum Corporation Limited case is the quantity pumped in which represents the quantity of goods unloaded/ imported into India. It was thus submitted that the department has erred in taking quantity received in shore tank as the weight for assessment. Since ship ullage quantity is measured at the time when the goods are still on board, the ship and the taxable event has not occurred which will occur only in respect of the quantity discharged from the vessel and in any case, the ship ullage report indicated only a marginal higher quantity than the bill of lading quantity. Therefore, it cannot be said that the higher quantity was imported unless it is shown that the actual quantity received in the shore tank was the same as the ullage quantity. The ship ullage quantity represents the quantity on the ship at the point of discharge from the ship and does not represent the quantity actually received or pumped in the hands of the importer. The reliance placed by the department on Mangalore Refinery and Petrochemicals Ltd. case (Cited supra) was misplaced as the said decision nowhere rais....
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....e maintaining that for assessment on ad-valorem basis transaction value to be considered and custom duty will be leviable on invoice. The Circular thus clearly relied upon shore tank measurement method only when specific rate of duty was in operation. The decision in the case of CC vs Hindustan Petroleum Corporation Limited 2000 (121) ELT 109 decided that it is the quantity which has come into shore tanks that makes the import as a taxable event. This decision was holding the field till decision of Mangalore Refinery and Petrochemicals Ltd. (cited supra) came and held that irrespective of whether duty is ad-valorem or on specific rate it makes no difference for the instance of importation. It thus clearly rejects bill of lading quantity as the imported quantity and notes that when the goods are destroyed, pilfered or lost enroute, no duty is leviable. We find that in para 17, the Hon'ble court has observed as follows: "17. The Tribunal's reasoning that somehow when customs duty is ad valorem the basis for arriving at the quantity of goods imported changes, is wholly unsustainable. Whether customs duty is at a specific rate or is ad valorem makes not the least difference to....
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....ationis. For this view, we also draw support from the decision of Apex court in Commissioner of CGST, J&K vs Saraswat Agro Chemicals (P) Ltd. as reported in 2023 (386) ELT 193 (SC). The relevant paras 6,7,8 are reproduced below: "6. With regard to the reference order made on 27-9-2021 on a miscellaneous application filed by the Revenue seeking to undo the judgment in M/s. SRD Nutrients (P) Limited which was overruled in the subsequent judgment of this Court in M/s. Unicorn Industries (supra), the question is whether there was a need at all to refer the matter to a Larger Bench. This is for two reasons: firstly, such an application could not have been filed after a review petition in M/s. SRD Nutrients (P) Limited had been dismissed by this Court. Thus, in substance, by filing the miscellaneous application the revenue was seeking a second review of the said judgment which is impermissible in law (Order XLVII Rule 9 CPC). Secondly, by ignoring the Explanation to Order XLVII Rule 1 of the CPC and the principle that emerges from the same, what is sought to be contended by Learned ASG is that if a judgment is overruled by this Court by a subsequent judgment, then the overruled ....