Custom, Excise & Service Tax Tribunal
M/S. Bharat Petroleum Corporation Ltd vs Commissioner Of Customs (Imports), ... on 8 November, 2012
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/410/12
(Arising out Order-in-Appeal No. 85/MCH/AC/OIL UNIT/2012 dated 13.2.2012 passed by the Commissioner of Customs (Appeals), Mumbai I)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
M/s. Bharat Petroleum Corporation Ltd.
Appellant
Vs.
Commissioner of Customs (Imports), Mumbai
Respondent
Appearance:
Shri Bharat Raichandani, Advocate for the appellant Shri P.N. Das, Comm (AR) for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 08.11.2012 Date of decision : 08.11.2012 O R D E R No:..
Per: Mr. P.R. Chandrasekharan, Member (Technical) The appeal is directed against Order-in-Appeal No. 85/MCH/AC/OIL UNIT/2012 dated 13.2.2012 passed by the Commissioner of Customs (Appeals), Mumbai I.
2. Vide the impugned order the refund application of the appellant, M/s. Bharat Petroleum Corporation Ltd. (BPCL), for an amount of `32,01,55,957/- was rejected on the ground that the refund claim was premature.
3. The appellant BPCL had imported crude oil and other petroleum products during the period 1.04.1992 to 31.03.1997 and the bills of entry were provisionally assessed and a duty demand of `92,62,86,322/- was confirmed on the basis of public notice no. 49/92 dated 23.02.1992 which prescribed that in the case of bulk liquid cargo the quantity has to be determined on the basis of ships ullage instead of shore tank received quantity. The said confirmation was made under order no. 3/97 dated 31.12.1997. The appellant pointed out certain discrepancies in the said order, and the assessing officer passed a rectification order under Section 154 of the Customs Act, 1962 wherein the demand was re-quantified at `24,89,94,181.08 vide order no. 02/98-Oil dated 27.03.1998. The appellant paid 50% of the duty demanded and filed an appeal before the lower appellate authority who dismissed the appeal vide Order-in-Appeal no. 141/2000-MCH dated 09.03.2000. The appellant preferred an appeal before this Tribunal and this Tribunal vide order no. C-II/941-42/WZB/2003 dated 02.05.2003 held as follows:-
4. In the order impugned in the appeal, the Commissioner has confirmed the finding in the order of the Assistant Commissioner of Customs impugned before him, that the appellant was liable to pay duty on the quantity of the crude oil that it imported based on the alleged records of the ship stand and not stand by the appellant on the lower quantity that of the oil that were received from the shore tank that is pumped from the ship.
5. The Supreme Court has dismissed the appeal filed by the Commissioner against the decision of the Tribunal in National Organic Chemical Industries Ltd. vs. Commissioner 2000 (126) ELT 1072 (and in CC vs. Hindustan Petroleum Corporation Ltd. 2000 (1211) ELT 109) on merits. Subsequently, the Board in its circular no. 96/2002-Customs of 27.12.2002 has held that quantification of bulk liquid cargo was to be determined on the basis of receipt in the shore tank. This development occurred after the Commissioner passed the order impugned in this appeal.
6. The appeal is accordingly allowed and the impugned order set aside. Consequential relief in accordance with law. (Emphasis supplied)
4. As per the Tribunals order, the quantification of duty had to be done on the basis of receipt in the shore tank and not on the basis of ships ullage. Further, this Tribunal directed to provide consequential relief to the appellant in accordance with law. In other words, the assessment which were provisional earlier, had to be finalised as per the directions of the Tribunal in accordance with law, and consequential relief had to be given to the appellant. This order of the Tribunal was not challenged by the revenue and had become final. Therefore, in terms of the aforesaid order, the assessment had to be finalised by the revenue. Thereafter the appellant vide letter dated 30.06.2003 sought refund of `32,01,55,959/- arising out of the finalisation for the period 01.04.1992 to 31.03.1997 and reminded the revenue for sanction of the refund vide letter dated 18.10.2005, 10.10.2006, and 30.08.2007. Thereafter the lower adjudicating authority passed the order dated 18.11.2009 rejecting the appellants claim for refund on the ground that the claim is pre-mature inasmuch the finalisation of the bills of entry on the basis of shore tank quantity received is still pending.
5. We do not understand how the revenue can claim that the refund claim is pre-mature. This Tribunal vide order dated 14.02.2003 had directed the revenue to finalise the assessment in terms of quantity received in the shore tank and to grant refund in accordance with law. However, even after a lapse of 9 years, the revenue claims that the refund claim is pre-mature. Once a decision has been given by the Tribunal clearly indicating the basis for determination of the duty, it was incumbent on the revenue to finalise the assessment on the basis of those directions and to provide consequential relief to the appellant. Even after 9 years of the passing of the said order, the department has failed to implement the direction of the Tribunal and has rejected the refund claim of the appellant saying that it is pre-mature. This action on the part of the department reveal the utter contempt and judicial indiscipline on the part of the revenue. Therefore, we set aside the impugned order dated 13.02.2012 passed by the lower appellate authority as unsustainable in law and allow the appeal with consequential relief to the appellant in terms of the order of this Tribunal dated 14.02.2003. The relief shall be granted to the appellant forthwith.
(Operative part pronounced in Court) (Ashok Jindal) (P.R. Chandrasekharan) Member (Judicial) Member (Technical) SR 5