Case Law Details
Shree Cement Ltd Vs C.C.-Jamnagar (prev) (CESTAT Ahmedabad)
CESTAT find that the appellant had expressed their inability to unload the cargo at Navalkhi Port on account of bad weather and rough sea. They could unload cargo with respect of part of the consignment. In respect of rest of the cargo the same was shifted to Pipavav Port.
Assistant Commissioner of Customs, Division permit shifting of cargo subject to conditions. The revenue is relying on the condition 3 of the said permission letter. Examination of condition 3 would show that the said condition relates to proper accountal of imports cargo. It does not really relate to the revenue on account of different of assessable value or difference of exchange rate.
It is also seen that when the IGM was permitted to the amended at Navlakhi port it amounted to modification quantity of import at Navlakhi This meant that the quantity imported in Navlakhi port was not the entire quantity of the ship but only a small part of the total quantity on the ship. In these circumstances the duty was paid on excess quantity of cargo at Navlakhi Port and the same has to be refunded. No adjustment on account of a different assessable value adopted at Pipavav Port cannot be made in the refund amount as the import and clearance made at Pipavav Port is an independent clearance made by different Assessing Officers.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This appeal has been filed by Shree Cement Ltd against denial of refund claim by them.
2. Learned Counsel pointed out that they are imported MT Steam Non-coking coal at Navlakhi Port and the said cargo was imported by numerous Bills of Lading. They are cleared goods in respect of some Bills of Lading at Navlakhi Port. They could not unload the goods in respect of other Bills of Lading due to bad weather and rough sea. They applied to the Assistant Commissioner of Customs Division, Jamnagar for amendment to the Bills of Lading and IGM and shifting of the cargo to Pipavav Port. Permission was granted by the Assistant Commissioner of Customs Division, Jamnagar however whole granting permission, certain condition were imposed. The appellant took the balance cargo to the Pipavav Port. They unloaded the same at Pipavav Port. They paid duty as per assessment at the Pipavav Port. The assessment at the Navlakhi port was done after loading the value by certain amount by the Assessing Officer. The assessment at Pipavav port was done without loading at the declared value. The exchange rate at the time of unloading at Pipavav Port and Navlakhi port was also different.
3. Since the appellant had paid duty of entire case so that Navlakhi Port they filed a refund claim in respect of quantity not unloaded at Navlakhi Port as the said quantity was cleared at Pipavav Port on payment of duty. The said refund was granted to the appellant. However certain amount of refund was rejected. This amount rejected was equal to the difference between the duty paid at Navlakhi Port on transferred cargo and duty paid on the same at Pipavav Port. This difference was on account of loading as well as exchange
4. Aggrieved by the said order denying part of the refund claim the appellant filed the present appeal before Tribunal.
5. Learned AR argued that one of the conditions for permitting the amendment to bill of lading and IGM was that there should be any revenue The assessable value of assessment at Pipavav Port was lower as compare to the assessable value for assessment at Navlakhi Port on two counts. Firstly, on account of loading done at Navlakhi Port and secondly, on account of change in exchange rate. Consequently, there was a reduction in total Customs Duty paid. The refund was denied only to the extent of the reduction in total duty paid as a consequence at this shipping of cargo.
6. We have considered the rival submissions. We find that the appellant had expressed their inability to unload the cargo at Navalkhi Port on account of bad weather and rough sea. They could unload cargo with respect of part of the consignment. In respect of rest of the cargo the same was shifted to Pipavav Port.
7. The conditions imposed by the Assistant Commissioner of Customs, Division for permitting the shifting of cargo are reproduced below:-
8. The revenue is relying on the condition 3 of the said permission letter. Examination of condition 3 would show that the said condition relates to proper accountal of imports cargo. It does not really relate to the revenue on account of different of assessable value or difference of exchange rate.
9. It is also seen that when the IGM was permitted to the amended at Navlakhi port it amounted to modification quantity of import at Navlakhi This meant that the quantity imported in Navlakhi port was not the entire quantity of the ship but only a small part of the total quantity on the ship. In these circumstances the duty was paid on excess quantity of cargo at Navlakhi Port and the same has to be refunded. No adjustment on account of a different assessable value adopted at Pipavav Port cannot be made in the refund amount as the import and clearance made at Pipavav Port is an independent clearance made by different Assessing Officers.
10. Consequently, we do not find any merit in this order. The impugned order is set aside, appeal is allowed.
