Custom, Excise & Service Tax Tribunal
M/S. Philips Carbon Black Ltd vs Cc, Cochin on 1 August, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Court I(DB) Date of Hearing:01/08/2013 Date of decision:01/08/2013 Application No.C/Stay/1582,1597-1599, 1608-1610/2012 Appeal No.C/2173, 2189-2190, 2202-2204/2012 (Arising out of Order-in-Appeal No.136/2012, No.137/2012, No.138/2012, No.146/2012, No.147/2012, No.148/2012, No.145/2012 all dated 03/05/2012 passed by CC(Appeals), Cochin) M/s. Philips Carbon Black Ltd. ..Appellant(s) Vs. CC, Cochin ..Respondent(s)
Appearance Mr. Kuriyan Thomas, Advocate for the appellant.
Mr. S. Teli, Deputy Commissioner(AR) for the respondent.
Coram:
Honble Mr. B.S.V. Murthy, Member(Technical) Honble Mr. Anil Choudhary, Member(Judicial) FINAL ORDER No.25749-25755/2013 [Order per: B.S.V. Murthy] In all the appeals issue involved is common and therefore all the appeals are taken together and a common order is passed. Since we find that the matter can be finally decided, we waive the requirement of predeposit and take up the appeals for final decision with the consequent of both sides.
2. The appellant imported consignments of carbon black feed stock oil. The assessment was made provisionally and duty was paid on the basis of actual quantity received in the shore tank. Subsequently assessment was finalized and duty was calculated on the basis of transaction value indicated in the invoice. The appellant claimed that duty liability should be restricted to the value on the quantity actually discharged into the shore tank and quantity not discharged has not been received into India and therefore not liable to duty. It was also submitted that the obligation to pay the foreign supplier in terms of the invoice does not amount to duty liability. The submissions were rejected and differential duty with interest has been demanded and hence the appeals.
3. The learned counsel reiterated the points made before the lower authorities which has already briefly enumerated above. He submits that according to Section 12 of Customs Act 1962, duty liability arises only on the imported goods and importation is complete only when the goods form part of the land mass. In this case the product imported by the appellant became the part of land mass only when it is stored in the tank and therefore the claim made by the appellant that duty should be levied on the quantitative basis is correct.
4. The learned AR relies on the decision of the Tribunal in the case of Mangalore Refinery & Petrochem. Ltd. Vs. CC, Mangalore [2006(205) ELT 753 (Tri. Bang.)] wherein it was held that duty is payable on the total payments made by the appellant irrespective of the quantity received. It was also held in that decision that appellants are not entitled for any reduction on account of losses. It was observed that when levy is ad valorem basis, there is no legal sanction for collecting more duty or less duty based on the quantity actually received.
5. We find that the decision in MRPL case is squarely applicable to the facts of this case and the learned counsel has not been able to produce any contrary decision of the Tribunal or higher judicial forum. As regards the submission relating to Section 12, this aspect can be said to have been considered when the Tribunal observed that duty is payable on the basis of value when the duty is ad valorem basis irrespective of the quantity received. Under these circumstances, we do not consider it necessary that we should go into further consideration of the very same issue. In the result, we find that the appellant has not been able to make any case at all. Accordingly, all the appeals are rejected. Stay applications also get disposed of.
(Pronounced and dictated in open court)
( ANIL CHOUDHARY) (B.S.V. MURTHY)
MEMBER(JUDICIAL) MEMBER(TECHNICAL)
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