ORDER
Archana Wadhwa, Member (J)
1. After dispensing with the condition of predeposit of duties, I take up the appeal itself as the issue is covered in favour of the appellants by the earlier decision of the Tribunal in the appellants’ own case.
2. Duty has been confirmed against the appellants by observing that as against 9900 MT of Low Ash Mettalurgical Coke imported by the appellants, they have shown receipt of only 9819.570 MT and as such there is a shortage of 80.430 MT. Accordingly, the authorities have confirmed the demand of duty of Rs. 1,52,087/- in terms of Section 67 of the Customs Act read with Section 142 and Section 28(2) of the Act.
3. Shri R. Santhanam, General Manager of the appellants’ Company, submits that an identical issue was considered by the Tribunal in the appellants’ own case reported in – 1999 (114) E.L.T. 103 (T) = 1999 (34) RLT 532 (CEGAT). Me submits that in fact, the weighments done at Port of dispatch, was to the tune of 9815.660, as per the certificate given by Paradeep Port. As against the said quantity of goods, they received 9819.570 of the goods at their warehouse as certified by the Superintendent of Central Excise & Customs. As such it is their contention that there was in fact an excess 3.910 MT. The appellants have strongly relied upon the earlier decision of the Tribunal and submits that such type of problem is being faced by them in every shipment and earlier cases made out by the Revenue have been set aside by the Tribunal in a number of cases.
4. I have also heard Shri A.K. Pandit, Id. JDR appearing for the Revenue.
5. It is seen that that the reliance was placed by the appellants on
the earlier decision of the Tribunal before the Commissioner (Appeals). The Appellate Authority in his impugned order has observed that all the cases cited by the appellants appeared to relate to the identical/similar issue involved in the present case and in fact two of the referred case laws relate to the appellants’ own case. However, he has not followed the same on the ground that the Tribunal in a later judgment in the case of Exim India Oil Co. Ltd. and Ors. v. CC (Port), Calcutta reported in – 2001 (131) E.L.T. 207 (T) = 2001 (42) RLT 181 (CEGAT) has held that “as regards the ocean loss, we find that the Hon’ble Supreme Court in the case of CCE v. Surya Roshni Ltd. – 2000 (122) E.L.T. 3 (S.C.) = 2000 (41) RLT 249 (SC) has laid down that the transit losses, for which payments are made by the assessee to the consumers as compensation for losses cannot be deducted from the assessable value of the goods………….”. As such, he has held that in view of the recent decision referred (supra), he has taken a contrary view in relation to the identical issues decided earlier. However, it is seen that the issue involved in the case Exim India Oil Co. Ltd. and Ors. was not identical to the one involved in the present matter or decided by the Tribunal in the earlier cases. The issue in Exim India Oil Co. Ltd. related to determination of the assessable value of the goods wherein it was observed that ocean losses cannot be claimed as a deduction for the purposes of arriving at the assessable value. The issue in the present matter relates to the alleged shortage between the quantity despatched by the exporter and the quantity handed over to the appellants by the Port Trust. As such, I am of the view of the earlier decision relied upon by the appellants duly covered the issue in question in favour of the appellants, I set aside the impugned order and allow the appeal with consequential relief to the appellants. Stay Petition also gets disposed of in the above terms.