ORDER
P.K. Das, Member (J)
1. Heard both sides. The relevant fact of the case, in brief, are that the respondent imported various vegetable oils for use in the manufacture of vanaspati and refined oil. at concessional rate of duty in terms of Notification No. 16/2000-Cus. dated 6-3-2000, It was noticed that the respondent received 30283.3 MTs of vegetable oils against the 30428.9 MT imported by them as mentioned in the bill of Entries. It has been alleged that in terms of the said notification, concessional rate of Customs duty is applicable, if the vegetable oils, imported are used for the manufacture of vanaspati or refined oil. Therefore, 145.6 MT of vegetable oils received short have not been used for the specified purpose, thus benefit of concessional rate of Custom duty is not available to the respondent and accordingly, Custom duty of Rs. 5,43,078/- is recoverable. The adjudicating authority confirmed the demand of duty and imposed penalty of Rs. 10,000/-. In the impugned order, the Commissioner (Appeals) set aside the Or-der-in-Original and hence the revenue filed this appeal before the Tribunal.
2. The Id. DR submits that the goods have been imported by the respondent under bond subject to fulfilment of conditions of the relevant exemption, bill of entries have been assessed provisionally by the Customs authority and in respect of the quantity of 3042S.9 MT. It is contended that the respondent not challenged the Bill of Entries and, therefore, they are liable to pay duty on the shortage. The Id. DR. relied upon the Supreme Court’s decision in the case of Flock India v. CCE .
3. The Id. Advocate or behalf of the respondent submits that Bill of Entry was filed on the basis of ullage report taken prior to actual unloading of the good. But the duty will be determined on the basis of shore tank receipt quantity as decided by CBEC Circular No. 95/2002-Cus. dated 23-12-02. It is revealed from the show-cause notice that the respondent received 145.6 MT short which was lost in transit. In view of the decision of the Tribunal in the case of Mahavir Vamspati v. CCE, Ludhiana 2004 (65) RLT 64 (Tribunal), he submits that the Commissioner (Appeals) rightly set aside the adjudication order.
4. After bearing both the sides and on perusal of the record, I find that the issue involved is whether duty is to be determined on the basis of ullage report or shore tank receipt CBEC vide Circular No. 95/2002-Cus. dated 23-12-02, it has been clarified that in the case of all bulk liquid cargo imports, whether for home consumption or for warehousing, the shore tank receipt quantity should be taken as the basis for levy of Customs duty. As such, the Commissioner (Appeals) rightly set aside the demand of duty on the basis of board’s circular. In this connection, it is noticed that in the show-cause notice there is no dispute in respect of the assessment of the goods and, therefore, the decision relied upon by the Id. DR is not applicable herein. Accordingly, I do not find any reason to interfere the order of the Commissioner (Appeals). The appeal filed by the Revenue is-rejected.
(Dictated and pronounced in open Court)