ORDER
C.N.B. Nair, Member (T)
1. The appellants imported RBD Palmolein Oil through Chennai and Kakinada Ports. Therefore, the consignments were transported by road to Hyderabad and warehoused in the importer’s private bonded warehouse after so warehousing the imported goods, they claimed refund of part of the customs duty paid at the time of imports. A ground was taken that quantity received at Hyderabad was less than the quantity invoiced and the appellant was liable to pay duty only on the quantity actually warehoused. Lower authorities rejected the claims. Hence the present appeals.
2. Appellants maintain that it is well settled in terms of Circular No. 96/2002-Cus., dated 27-12-2002 of the Central Board of Excise and Customs, the duty demand could be only on the quantity warehoused at Hyderabad. As against this contention of the appellant, learned SDR would submit that the authority cited by the appellant is not applicable to the present case. He has pointed out that that Circular is to the effect that quantity to be taken for assessment should be the quantity warehoused in shore tank. Learned SDR has pointed out that in the present case, goods were not warehoused at the place of import but were transported a long distance by road. According to SDR, quantity difference attributable to losses during transit etc. are not to be taken into account. He has referred in this connection to Para 6 of the Circular No. 96/2002-Cus., dated 27-12-2002 which is reproduced below :
“6. Another issue of relevance pertains to assessment of bulk liquid cargo which is not discharged through regular pipelines and cleared directly on payment of duty under a white Bill of Entry, i.e. without the cargo being warehoused in a shore tank. The point raised is how to determine the quantity, in such cases. It needs to be mentioned here that though the CEGAT order in case of M/s. HPCL relates to a situation of bonded tanks in a warehousing scenario, it would nevertheless be applicable in a situation of home consumption shore tank discharge which is under custodian/customs control. In such situations, the port/custodian would be issuing reports for quantity actually received. In the light of the guidelines of CEGAT orders referred to above, it has been felt that it is this quantity which should be taken into account for the purposes of levy of duty. However, in a situation where there is no facility of measurement at the port i.e. bulk liquid cargo which is not discharged through regular pipelines and cleared directly on payment of duty under a white Bill of Entry, i.e., without the cargo being warehoused in a short tank, assessment may continue to be done as per ship’s ullage survey report.” (Emphasised added).
3. We have perused the records and considered the submissions made by both sides. The quantities involved in the present case are as under:
“Sl.
No.
In to B/E No.
Adj. Order Date
Invoice
Qty.
Actually Qty. Recd. Into Bond Tanks at Hyderabad
Qty. Less Received
Duty
Amount
Mts.
Mts.
Mts.
Rs.
1.
3/99,31-3-99
997.424
989.835
7.589
45,667/-
2.
4/99,31-3-99
744.516
736.255
8.291
43,972/-
3.
5/99,31-3-99
1248.271
1230.55
17.721
1,02,071
/-
4.
6/99,
31-3-99
1250.000
1243.165
6.835
42,360/-
5.
7/99,
31-3-99
756.375
746.385
9.990
53,834/-
6.
8/99,
31-3-99
749.963
724.315
25.648
1,28,356/-
7.
9/99,
31-3-99
748.378
745.000
3.378
20,435/-”
It is to be noted from the above data that there is no pattern at all to the variation in quantities between invoice and warehoused quantity. Quantity imported under Serial Nos. 6 and 7 are somewhat same; but quantities warehoused at Hyderabad vary vastly. Under Serial No. 6, the difference is about 25.6 a MT while under Serial No. 7 the variation is only a fraction of it, at 3.4 MT. Vast variation in respect of comparable quantities is to be noted under Serial Nos. 3 and 4 also. During the hearing of the case, we specifically asked the representative of the appellant about reasons for such variations. There was no explanation. To our query, the representative of the appellant also replied that payment to the foreign supplier is based on the invoice quantity and not based on the quantity finally warehoused at Hyderabad. In these facts, we are of the view that the more reliable quantity under import is the invoiced quantity. Levy of customs duty is on goods imported at the place of import and, not on the quantity or value of the goods received in interior parts of the country. Para 6 of the Circular of the Board also makes this distinction clear.
4, In view of the above, we are of the opinion that lower authorities were justified in rejecting the refund applications. Those orders are confirmed and appeals are rejected.