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9. Mr. Jetley further submitted that the impugned Circular No. 96/02, dated 27-12-2002 has been issued by the C.B.E.C. after examining the matter in the light of the decision of the Apex Court in the case of NOCIL (supra).

10. Mr. Jetley further submitted that in the case of palm acid oil on arrival of the ship immediately after the ullage survey the oil is discharged into the tank lorries and once all the tank lorries are loaded, another Ullage Survey termed as "after discharge" is carried out. The difference between the 'before discharge ullage survey report' and after the discharge ullage survey report is taken to ascertain the oil actually discharged into the tanker lorries. These tanker lorries are taken to B.P.T. Weigh-bridge after obtaining out of charge from the proper officer. Since there is no time gap left between the pre-discharge ullage survey and after discharge ullage survey, if any loss in the quantity occurs during physical weighment of lorries, it is due to adhesive properties of fatty oil, pilferage of the oil from the pipes during discharge, leakage from the tank lorries, mechanical error in the Weigh-bridge, error in reading the weight, etc. Accordingly, it was submitted that where there is no facility for discharge of cargo through regular pipeline, quantity as per the ullage survey report has to be the basis for the purpose of assessing the discharged cargo.

11. Mr. Jetley further submitted that the cargo discharged through the regular pipeline e.g. petroleum products are volatile in nature; whereas cargo such as palm acid oil are not volatile. In view of the volatile nature of the cargo and there being no chance of diverting the goods transported through the pipeline, the Tribunal held that in the case of cargo discharged through regular pipeline into the shore tank, the measurement taken therein should be adopted for assessment. Mr. Jetley submitted that the cargo imported by the petitioners is not volatile in nature and after the cargo is loaded into lorries, the same is out of the charge of the Customs authorities and merely because the goods are weighed on the Weigh-bridge for the safety of importers, it cannot be said that the quantity for the levy of customs duty should be as per the Weigh-bridge report. He submitted that the ullage measurement is carried out in the presence of the consignee. Accordingly, it was submitted that there is no merit in the contention of the petitioners and the above petitions be dismissed.