TaxTMI 
TaxTMI 
2002 (1) TMI 114
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.... filed and that quantity should form the basis for assessment of duty. Therefore, due to such non-acceptance of Bills of Entry showing shore-tank quantities, the appellant filed Bills of Entry showing the quantity as per 'ship's ullage Survey Report' under protest. Based on other documents as provided under Section 18(1) of the Customs Act the BE's were assessed provisionally. The assessing officer, rejected the appellants request regarding assessment of duty on the basis of quantity as per 'shore-tanks' and insisted on assessment based on quantity as per 'ullage reports'. The Commissioner (Appeals) by a common impugned order in these three appeals after hearing the appellant came to the following finding — "The Original Authority has followed the guidelines laid down in Public Notice No. 3/94, dated 10-3-94 issued by the Mangalore Custom House which in turn is based on the decision of the Hon'ble Bombay High Court in the case of Shaw Wallace Company Limited v. Assistant Commissioner of Customs, 1986 (25) E.L.T. 948. The appellants have in their defence relied on several decisions which have either been differed with or distinguished, in the decision of the Hon'ble Tribunal....
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....her words the actual date when the vessel entered territorial waters of India has been considered to be not relevant for the purpose of customs duty. The Hon'ble Tribunal in their decision in the case of Cochin Refineries Ltd., 1999 (105) E.L.T. 108 had no doubt relied on the judgment of the Hon'ble Bombay High Court which has not been found to be not laying down the law correctly. Yet the fact remains that the decision does not address the question of determination of quantity and in that context the date is not a relevant issue. The basic question involved in the case before the Hon'ble Supreme Court was the crucial date for application of the rate of duty. It is seen that the ullage survey report is the first report that is available since goods in bulk particularly in liquid form is imported into the country. Though it has been argued that the ullage survey report does not give an accurate account of the quantity that is discharged at the port, the fact remains that the ullage survey report helps in discharging the responsibility enjoined on the ship master with the quantity that is supposed to have been imported and to be discharged at the concerned port. It is also seen th....
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....or on the basis of the quantity as per shore-tank receipts. (b) whether the impugned demands raised under Section 28(2) of the Customs Act, 1962 as short-levy is valid and legally sustainable." And the final order does not appear to be based on the Supreme Court decision on levy of duty and assessment on Ex-Bond Warehouse removals under Section 68(1)(a). In the case of Kiran Spinning Mills, 1999 (113) E.L.T. 753 (S.C.) a full Bench of the Supreme Court has held as under: "6.........That apart, this Court has held in Sea Customs Act - 1964 (3) SCR 787 at page 803 that in the case of duty of Customs the taxable event is the import of goods within the customs barriers. In other words, the taxable event occurs when the customs barrier is crossed. In the case of goods which are in the warehouse, the Customs barrier would be crossed when they are sought to be taken out of the Customs and brought to the mass of goods in the country........"(emphasis supplied) Therefore, in this case, duty shall have to be assessed only on such quantity, which is removed from the warehouse, on the date of physical removal when we see the mandate of Section 68 read ....
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....refore we find no justification in taxing, quantities as imported by being shown in the 'ullage reports', which may be not the quantities whose import would be completed as held by the Supreme Court in the above said decisions. We therefore find no support for the proposition to reckon the ullage survey report quantities for purposes of duty to be shown on Bill of Entries filed under Section 68(1)(a) of the Customs Act. (d) We have examined the contention of the learned SDR, that the decision in the case of Shah Wallace & Co. - 1986 (25) E.L.T. 948 (Bom.) have to be followed as it specifically prescribes for Liquid Cargo in Bulk, as in this case Crude Oil that in case of any difference between the Bill of Lading quantity or the "Ullage Survey Report" of the Port of Loading quantity and the discharge from Ullage Survey Report quantity, then such different shall be considered as short landed quantity and for which the ship's owner should be held responsible by action under Section 116 of the Customs Act. (Para 8 of the reported decision) and in the impugned Order No. 120/99 in Appeal C/339/2000 it has been recorded..... "....It is also seen that the oil ....