Custom, Excise & Service Tax Tribunal
M/S.Caltex Gas India Private Ltd vs Commissioner Of Customs, Tuticorin on 15 April, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.C/70/2009
[Arising out of Order-in-Appeal No.31/2008 dated 12.11.2008 passed by the Commissioner of Customs & Central Excise (Appeals), Tiruchirappalli]
For approval and signature:
Honble Ms. JYOTI BALASUNDARAM, Vice-President
1. Whether Press Reporters may be allowed to see 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
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s.Caltex Gas India Private Ltd.
Appellants
Versus
Commissioner of Customs, Tuticorin
Respondent
Appearance:
Shri J.V. Niranjan, Adv. Shri C. Dhanasekaran, SDR For the Appellants For the Respondent CORAM:
Honble Ms. Jyoti Balasundaram, Vice-President Date of hearing : 15.04.2010 Date of decision : 15.04.2010 Final Order No.____________ The appellants herein imported fully refrigerated homogenously premixed LPG from Saudi Arabia under bills of entry for warehousing. The bill of entries were assessed on ad valorem basis on invoice value. As per the survey reports, the actual quantity received in the short tank was less than the quantity shown in the bill of lading. The importers filed applications for refund of import duty paid for the short-landed quantity, as it was their stand that they were required to pay only on the actual quantity received in the shore tank. The claim was proposed to be rejected and the notice was adjudicated by the Assistant Commissioner who rejected the claim for refund of Rs.8,93,495/-. The rejection was upheld by the Commissioner (Appeals) on the ground that the bill of lading quantity/the invoiced quantity loaded in the port of loading and the quantity discharged from the ship is one and the same, as per the certified ullage report and the difference in quantity was only in the shore tank. He, therefore, concluded that there was no difference in the quantity loaded in the bill of lading and the quantity discharged from the ship. Hence this appeal.
2. I have heard both sides. I find that the issue in dispute, namely, as to what is the quantity on which duty is liable to be paid stands settled in favour of the assessees by the Tribunals decision in Commissioner of Customs, Mumbai Vs Hindustan Petroleum Corporation Ltd. [2000 (121) E.L.T.109 (Tribunal)] and Commissioner of Customs & Commissioner of Central Excise, Visakhapatnam Vs Ruchi Infrastructure Ltd. [2008 (224) E.L.T.477 (Tri.-Bang.)] holding that assessment of bulk liquid cargo is to be done only on the basis of shore tank quantity and not as per ship ullage report. The assessees have paid duty on the quantity shown in the ship ullage reports which is in excess of the quantity shown in the shore tank. Therefore, their claim for refund of excess duty has merit. I, therefore, hold that the assessees are entitled to refund of the excess duty paid subject to their satisfying the authorities below that they have not passed on the incidence of duty to their customers.
3. Fresh order is required to be passed by the adjudicating authority to whom the issue of unjust enrichment stands remitted, after extending a reasonable opportunity to the assessees of being heard in their defence.
4. The appeal is thus allowed by way of remand.
(Dictated and pronounced in open court) (JYOTI BALASUNDARAM) VICE-PRESIDENT ksr 20-04-2010 ??
??
??
??
1 2