2015(09)LCX0272

IN THE CESTAT, SOUTH ZONAL BENCH, CHENNAI

S/Shri R. Periasami, Member (T) and P.K. Choudhary, Member (J)

Pandi Devi Oil Industry

Versus

Commissioner of Customs, Trichy

Final Order Nos. 41159-41160/2015, dated 10-9-2015 in Appeal Nos. C/253 & 542/2009 and Cross Objection No. C/CO/96/2009

Cases Quoted -

Aflon Engineering Corpn. v. Union of India - 1991(01)LCX0059 Eq 1992 (061) ELT 0246 (Guj.) - Distinguished [Para 7]
Cargill India Pvt. Ltd. v. Union of India - 2012(07)LCX0185 Eq 2013 (288) ELT 0209 (Guj.) - Referred [Para 7]
Commissioner v. Amar Bitumen and Allied Products Pvt. Ltd.- 2006(08)LCX0063 Eq 2006 (202) ELT 0213 (S.C.) - Referred [Para 5]
Commissioner v. Nikhil Refineries Ltd. - 2011(07)LCX0068 Eq 2011 (272) ELT 0114 (Tribunal-LB)- Distinguished [Paras 8,14]
Garden Silk Mills Ltd. v. Union of India - 1999(09)LCX0298 Eq 1999 (113) ELT 0358 (S.C.)- Distinguished [Paras 5, 8,14]
Godrej Industries v. UOI - High Court's Order - Referred [Para 13]
Gujarat Ambuja Exports v. Commissioner - 2009(06)LCX0477 Eq 2011 (269) ELT 0239 (Tribunal)- Relied on [Paras 5,11,12]
Mangalore Refinery and Petrochemicals Ltd. v. Commissioner- 2006(02)LCX0454 Eq 2006 (205) ELT 0753 (Tribunal) - Distinguished [Paras 8,14]
Orient Weaving Mills (P) Ltd. v. UOI - Supreme Court decision - Distinguished [Para 12]
T.T.K. Healthcare Ltd. v. Commissioner - 2005(07)LCX0454 Eq 2008 (231) ELT 0273 (Tribunal) - Referred [Para 5]
Tata Tea Ltd. v. Commissioner - 2003(12)LCX0179 Eq 2004 (164) ELT 0315 (Tribunal) - Referred [Para 5]
Union of India v. Aflon Engineering Corporation - 2000(07)LCX0312 Eq 2000 (122) ELT 0334 (S.C.)- Referred [Paras 7,12]

Departmental Clarification Quoted-

C.B.E. & C. Circular No. 96/2002-Cus., dated 27-12-2012 [Paras 6, 7, 8, 9,14]
C.B.E. & C. Circular No. 85/2003-Cus., dated 24-9-2003 [Paras 11,12]

Advocated By -

Shri Raghavan Ramabhadran, Advocate, for the As-
sessee.
Shri M. Rammohan Rao, DC (AR), for the Department.

[Order per : R. Periasami, Member (T)]. -

Both assessee's appeal and Revenue's appeal are taken up together as the issue is arising out of common OlO passed by Commissioner of Customs, Chennai.

2. The brief facts of the case are that appellant-assessee is an oil industry for manufacture of refined oils and imported crude palm oil of edible grade in bulk from Indonesia through Pondicherry Port. The same were cleared and warehoused in the private bonded warehouse and subsequently cleared from private bonded warehouse for home consumption. The Bills of Entry were provisionally assessed pending classification of the goods, pending determination of final quantity and test report. The assessee at the time of provisional assessment, sought to classify the goods under Chapter Heading 1511 10 00 and claimed benefit of exemption notification at SI. No. 29 of Notification No. 21/2002-Cus., dated 1-3-2002 which is chargeable to 85% ad valorem. The adjudicating authority while finalising the provisional assessment, classified the goods under Chapter 1511 90 90 at SI. No. 434 of the Notification No. 21/2002-Cus. which is chargeable to 90% ad valorem. Accordingly, the adjudicating authority demanded differential duty of Rs. 65,96,167/- in respect of 3 PD assessments on account of reclassification based on Acid Value and Beta Carotenoid content reported in the test report. The assessee was also directed to pay duty amount of Rs. 24,47,014/-on the difference in quantity of imported goods arising between quantity of import as per Ullage Survey Report and quantity cleared on payment of duty under PD bonds vide his order dated 12-2-2006.

3. In the first round of litigation, the assessee filed appeal against the said order dated 12-2-2006. The Commissioner (Appeals) set aside the order and remanded the matter to the adjudicating authority with a direction to follow principles of natural justice. In his de novo order, the Commissioner after issuing of SCN and personal hearing passed the adjudication order dated 13-6-2007 and classified the goods under Chapter 151 1 10 00 under SI. No. 29 of the Notification No. 21/2002-Cus. and also dropped demand of differential duty and also held that appellant-assessee are eligible for the refund of Rs. 64,44,882/- on the reclassification issue and set aside the demand of Rs. 24,47,014/- on the quantity issue.


4. The Revenue reviewed the said OIO and filed appeal before Commissioner (Appeals) on two grounds viz. (i) on the classification of crude palm oil classifiable under Chapter 1511 90 90 under SI. No. 434 of Notification No. 21/2002-Cus. thereby rejecting the consequential refund (ii) whether the actual quantity should be taken for payment of duty or the quantity as per Ship's Ullage Survey Report is to be taken. The Commissioner (Appeals) in the impugned order dated 15-5-2009 partly allowed Revenue's appeal on the classification issue. He allowed the Revenue's appeal and held that imported crude palm oil is classifiable under SI. No. 434 of Notification No. 21/2002-Cus. under Chapter Heading 1511 90 90 and rejected the refund of Rs. 64,44,882/- granted by the AC. However, he upheld the OIO dated 13-6-2007 insofar as the quantity issue involving demand of Rs. 24,47,014/-. Hence both the assessee and Revenue are aggrieved with the impugned order and have filed appeals before Tribunal.

5. The learned advocate reiterated the de novo order passed by the ad judicating authority and submits that the goods would fall under Entry No. 29 classifiable under 1511 10 00 as Entry No. 434 of notification is not applicable. He submits that the goods were imported through Pondicherry Port and the import ed goods are crude palm oil of edible grade. He relied on test report of Chemical Examiner and also Certificate of Analysis issued by the Port Health Officer where both the authorities have confirmed that the imported goods were crude palm oil of edible grade. He referred to the legal provisions for classification of goods imported to be determined as per general Interpretative Rules for classifi cation. He submits that there is no section note or chapter notes of Chapter 15defining 'crude oil'. He drew our attention to HSN Explanatory Notes of sub he ding 1511.10 and as per HSN the goods are rightly classifiable under 1511 10 00 whereas the department classified the goods based on the description given in Entry 34 of the exemption Notification No. 21 /2002. He submits that entry under SI. No. 34 of the notification cannot be applied for classification of the imported goods under Customs Tariff. Entry No. 34 specifies various acid value and carotenoid content for the purpose of exemption under that specific serial number and the same cannot be applied for classification of goods under 1511 10 00 and the department relying on the specification given in Entry 34 classified their goods under 1511 90 90 without legal basis. He relied the following case laws : -

(i) Gujarat Ambuja Exports v. CC, Kandla - 2009(06)LCX0477 Eq 2011 (269) ELT 0239 (Tri.-Ahmd.)

(ii) Tata Tea Ltd. v. CCE, Kochi - 2003(12)LCX0179 Eq 2004 (164) ELT 0315 (Tri.-Del.)


(iii) TTK Health Care Ltd. v. CCE, Aurangabad - 2005(07)LCX0454 Eq 2008 (231) ELT 0273 (Tri.-Mumbai)

(iv) CCE, Navi Mumbai v. Amar Bitumen & Allied Products Pvt. Ltd. - 2006(08)LCX0063 Eq 2006 (202) ELT 0213 (S.C.)


(v) Garden Silk Mills Ltd. v. UOl -1999(09)LCX0298 Eq 1999 (113) ELT 0358 (S.C).

6. Regarding the quantity dispute in the Revenue's appeal, Id. Advo cate submits that both the adjudicating authority as well as Commissioner (Appeals) have rightly held the actual quantity of crude palm oil loaded in the tank ers which was weighed at the port in the presence of Customs officers. He submits that the goods were imported in Pondicherry port where there is no shore tank facility available. Therefore, the vessels cannot discharge the oil directly to the shore tanks. The imported oil is brought to the port from the vessels at outer anchorage through barges. The oil is pumped into tanker lorries in the presence of customs officers and the quantity loaded on each tanker is weighed in the Port and thereafter transported to the private bonded warehouse. Therefore, the actual quantity imported into India is the quantity which left the port as per the actual weighment in the presence of customs officers. Department's relying on Board's Circular No. 96/2002-Cus., dated 27-12-2012 is not applicable. He submits that the said circular issued by the Board where liquid cargo is directly discharged to the shore tanks. Only in those facts and circumstances, the Board has clarified that quantity as per the Ullage Report should be taken as quantity of import and duty should be paid accordingly. He submits that in their case, the goods were not discharged directly from the vessel in the shore tanks and thereis no such facility. Therefore, the said Board's circular is not applicable to this case. He submits that department has accepted and adopted the tariff value for the imported crude palm oil where the tariff value was fixed under Chapter Heading 1511 10 00 of Notification No. 21/2002.

7. On the other hand, Id. AR appearing for the Revenue for assessee's appeal submits that Commissioner (Appeals) has rightly classified the goods correctly under Chapter Heading 1511 90 90 of CTH. He submits that Notification No. 21 /2002 provides exemption of crude oil under three different Serial Numbers 29, 34 and 434 and the Board has specifically clarified as to how crude palm oil should be classified as per the notification conforming to acid value and also arotenoid content. He also drew our attention to Prevention of Food Adulteration Rules where certain standards were specified for edible palm oil. He submits that description given in the notification read with Board circular should be applicable for classification of the crude oil. Even if it is not defined in the chapter or section note, the Government has power to define the item either in the notifi
cation or circular. Therefore both notification and the tariff should be read to gether for the purpose of classification. He relied the following decisions : -


(i) Cargill India Pvt. Ltd. v. UOl - 2012(07)LCX0185 Eq 2013 (288) ELT 0209 (Guj.)

(ii) Aflon Engineering Corpn. v. UOl - 1991(01)LCX0059 Eq 1992 (061) ELT 0246 (Guj.)


(iii) UOl v. Aflon Engineering Corporation - 2000(07)LCX0312 Eq 2000 (122) ELT 0334 (S.C.).

8. On the Revenue appeal, he reiterated the grounds of appeal. The quantity actually declared in the Bill of Lading at lo ad port should be the actual quantity or ullage quantity as per the master of vessel at the time of discharge of liquid cargo. He submits that quantity declared in the Bill of Lading is the quantity carried by the vessel. After arrival at the Indian port, master of vessel/agent takes dip measurement of each tank of the vessel which is called "Ullage quantity' which is done by the Joint Ullage survey. Therefore, the quantity taken in the truck and stored in the private bonded warehouse does not refer to the actual quantity. He referred to Para 7 of Board's Circular dated 27-12-2002 where the Board has categorically clarified that Ullage quantity should be taken. In this regard, he relied the following case law : -

(i) Mangalore Refinery &? Petrochem Ltd. v. CC, Mangalore - 2006(02)LCX0454 Eq 2006 (205) ELT 0753 (Tri.-Bang.)

(ii) CCE v. Nikhil Refineries Ltd. - 2011(07)LCX0068 Eq 2011 (272) ELT 0114 (Tri.-LB)


Ld. AR submits the Garden Silk Mills case relied by assessee is not applicable to this case.


9. In counter, the learned advocate relied Paras 3 and 4 of OIO and submits that the goods were not discharged directly from the vessel at the port instead the vessel was at outer anchorage where the oil was discharged into barges which was brought to the shore and loaded on the tankers. The tankers were weighed in the presence of customs officers and bills of entry were filed as per the quantity weighment done at the port. He submitted that Board's Circular dated 27-12-2012 is not applicable and submits that if there was a shortage, it was the difference between the quantity declared in the Bill of Lading and its final discharge. The importer is not liable to duty for the short-landed goods whereas the master of the vessel is accountable and liable for action under Section 116 of the Customs Act.

10. We have carefully considered the submission of both sides and pe rused the records. The issue before us in both assessee appeal and the Revenue appeal is -


(i) whether the imported crude palmolein classifiable under CTH 1511 10 00 as claimed by the assessee or under CTH 1511 90 90 as per Revenue and (ii) whether the quantity of crude palmolein is to be taken as per ship's ullage report or as per physical weighment done at the time of discharge at the port. 11. On the classification of the imported crude palmolein, the assessee's contention is that the imported goods are rightly classifiable under CTH 1511 10 00 as "Crude Palmolein" as per description of chapter headings of Customs Tariff and as per HSN Explanatory Notes and the same was rightly classified under CTH 151110 00 by the original authority under SI. No. 29 of Notification 21/2002 as no criteria of any acid value or carotenoid content prescribed in the Tariff for classification of crude palm oil. Whereas the Revenue's contention that classification of crude palmolein should be as per 2.8 of CODEX Standard prescribed for vegetable oil and as per notification at SI. No. 34 of 21/2002 and relied Board's Circular No. 85/2003, dated 24-9-2003. It is settled law that for classification of any imported goods, the principle and guidelines laid out in General Interpretative Rules for classification should be followed and the description given in chapter sub-heading and chapter notes, section note should be the criteria. The de-scription given in SI. No. 34 of Notification 21/2002 specifying values is only for giving exemption to specified goods under that SI. No. 34 and classification given in Circular No. 85/2003, dated 24-9-2003 cannot be taken as criteria for classifying the goods under Customs Tariff. In this regard, the Tribunal's Co-ordinate Bench in the case of Gujarat Ambuja Exports v. CC, Kandla (supra) on an identical issue of classification of import of crude palmolein has dealt the issue in depth and discussed the Board's circular and referred HSN Explanatory Notes and held that imported goods classifiable under CTH 1511 10 00 not under CTH 1511 90 90. The relevant paragraph of Tribunal's order is reproduced as under :-

"4. We have considered the submissions made by both sides in detail. The
competing tariff heading are as under :

5. We also find that the Commissioner has correctly identified the issue by
discussing the tariff headings as under :
"There are two sub-divisions of Entry 1511. First is 1511 10 00 which covers Crude Palm Oil and second 1511 90 which covers Palm Oil other than Crude Oil. The second category has been further divided into three sub-categories. First, if the Oil is refined, bleached and deodorized, then it is to be classified under Heading 1511 90 10 or 1511 90 20 depending on whether the oil is Palm or Palmolein. If a non-crude oil is not covered under 1511 90 10 or 1511 90 20, then the

same is classifiable under Heading 1511 90 90. Therefore, the basic issue is whether the imported goods are Crude Oil."


1. Admittedly, Crude Palm Oil has not been defined in the tariff. Howev
er, as pointed out by the learned advocate, the HSN provides the definition
of crude oil, which is reproduced below :

"Fixed vegetable oils, fluid or solid, obtained by pressure shall be considered as 'Crude' if they have undergone no processing other than decantation, ccntrifugation or filtration, provided that in order to separate the oils from solid particles only mechanical force, such as gravity, pressure or centrifugal force, has been employed, excluding any adsorption filtering process, fractionation or any other physical or chemical process. If obtained by extraction oil shall continue to be considered as 'crude', provided it has undergone no change in colour, odour or taste when compared with corresponding oil obtained by pressure."

7. The above discussion about the tariff heading leads us to conclusion that the palm oil produced by mechanical extraction shall be considered to be Crude' proyided it has undergone no change in colour, odour or taste when compared with corresponding oil obtained by pressure. The oil imported by the appellant has been tested and the test report by the Chemical Examiner reads as follows: The sample is in the form of reddish orange semi-liquid. It is palm oil having FFA (as palmitic acid) 4.1%, acid value 8.99%, total carotenoids (as beta carotene) 395 mg/kg. The Chemical Examiner during his cross examination, stated that the examination was conducted as per the 1SI standard and he has not carried out any test to find out whether decantation process, ccntrifugation or filtration, had been undertaken in respect of the sample, since it is not mentioned in the ISI. He also agreed that it would not be possible to find out whether the sample is obtained by extraction method or any other method. On a question by Dy. Commissioner as to whether the samples in question can be considered as Crude Palm Oil, the Chemical Examiner has replied that in ISI, the palm oil is referred to as refined or raw and not as Crude Palm Oil and clearly stated that the samples were that of raw palm oil and not refined palm oil.

8. In view of the fact that tariff heading clearly segregates the crude oil and others between 1511 00 and 1511 90 (divided to further headings), what we have to decide is as to whether the imported palm oil in this case is crude or not. The Chemical Examiner has clearly stated that it was raw oil and he was not in a position to say whether any of the process as which according to HSN, would take the palm oil out of the description of the crude palm oil, have bee carried out or not. We find considerable force in the argument advanced by the learned advocate that the imported product has to be classified under CTH 1511 10 00 only.


9. The only ground on the basis of which the Revenue has classified the Crude Palm Oil imported by them in 2003 under CTH 1511 90 90, as the circular issued by the Board on 24-9-2003. For better appreciation, the circular is reproduced below :

Circular No. 85/2003
24th September 2003
F. No. 528/21/2003-CUS(TU)
Government of India

Ministry of Finance
Department of Revenue Central Board of Excise & Customs
Sub: Import of Palm Oil/Palmolein in refined/crude form - reg.

I am directed to say that doubts have been expressed regarding classification of palm oil/palmolein imported in refined or crude forms.

2. This matter was also discussed in the Conference of Chief Commissioners held at Mumbai on 21st and 22nd August, 2003, minutes of which have been issued vide F. No. 401/86/2003-CUS-II, dated 4-9-2003.

3. According to the Explanatory Notes to the HSN, under Heading 15.07, fixed vegetable oils, fluids or solid obtained by pressure are to be considered as "Crude" if they have undergone no processing other than decantation, centrifugation of filtration, provided that, in order to separate the oils from solid particles only mechanical force, such as gravity, pressure or centrifugal force has been employed, excluding any absorption filtering process, fractionation or any other physical or chemical process. If obtained by extraction an oil shall continue to be considered as 'Crude' provided it has undergone no change in colour, odour or taste when compared with the corre-sponding oil obtained by pressure.

4. Crude paimolein is orange red in colour due to the presence of carotenoids. The carotenoids are destroyed during bleaching and distillation when the oil is refined.


5. With effect from 1st August, 2003, for the purposes of duty assessment, Crude Palm Oil and its fractions (which includes paimolein) have been given a more specific definition vide Notification No. 120/2003-Cus., dated 1-8-2003, (which amends Notification No. 21/2002-Cusv dated 1-3-2002). As per this definition, "Crude" palm oil/palmolein should have acid value of 2% or more and total carotenoid (as beta carotene) in the range of 500-2500 mg/kg. in loose or bulk form.

6. The above carotenoid range has been prescribed on the basis of Composition Characteristics 2.6 of CODEX STANDARD for Named Vegetable Oils (CODEX-STAN 210-1999).


7. Crude palm oil/palmolein would be classified under subheading 151110 00 of the Customs Tariff.

8. So far as refined, bleached and deodorized (RBD) palm oil/Paimolein is concerned, the same should conform to the specifications of refined vegetable oil under category A 17 15 of the Prevention of Food Adulteration Act, 1956. Such RBD palm oil/palmolein would be classified under sub-heading 1511 90 10 of the Customs Tariff.


9. If any grade of palm oil/palmolein cannot be categorised as crude palm oil/palmolein or as RBD palm oil/palmolein as per specification mentioned above, it will fall under the residuary category of 'other-other', under sub-heading 1511 90 90.

10. The next issue is regarding assessment of imports which have taken place prior to 1-8-2003. It is observed that prior to 1-8-2003, the item "Crude Palm Oil/Palmolein" was neither defined in the tariff nor in any exemption notification. Keeping this in view, it has been decided that Bills of entry filed for home consumption prior to I -8-2003 should be assessed on the basis of test reports of samples drawn by the Port Health Officer (PHO). If the reports mention the item as 'Crude palm oil/palmolein' or as 'palm oil/palmolein' which needs further processing, the report should be accepted and assessment finalized accordingly. If the test reports indicate the
item as RBD palm oil/palmolein, the assessment should be finalized under sub-heading 1511 90 10.


11. However, if the test reports do not contain indications as mentioned above, the matter will have to be examined as to whether provisions of Section 28A of the Customs Act, 1962 can be invoked in this case or not based on the general practice of assessment in the past. For this, a report is being sought separately from the Commissioners.

12. In respect of warehoused goods which are cleared for home consumption after 1-8-2003 (even though imports may have taken place prior to this date) the assessment will be done as per Section 15(l)(b) of the Customs Act, 1962, i.e. at the rate applicable on the date on which the Bill of Entry is filled for home consumption of the warehoused goods.


13. Action may be taken accordingly in respect of past pending and future clearances of palm oil/palmolein.

14. Kindly acknowledge receipt of this Circular.


15. Hindi version will follow.'

10. The Commissioner has relied upon the Paras 7 & 9 of the Circular in support of his view that the Circular issued clarification regarding classification of Palm Oil and it is not issued only for the purpose of particular notification, but for the purpose of classifying the imported palm oil. We find in Para 5 of the Circular it is clearly stated that for the purpose of duty assessment, Crude Palm Oil has been given a very specific definition. It is to be noted that the definition of Palm Oil has been given in an exemption notification and this definition has been communicated by way of Circular by the Board and the circular clarified that the duty assessment be made on the basis of the definition of Crude Palm Oil given in the notification. It is well settled law that for the purpose of classification, the tariff heading and the description of the tariff heading are relevant. When there is a doubt, HSN can be referred to. It is also to be noted that the tariff headings are assigned to different products and they are listed in the schedule to the Customs Tariff Act, enacted by the Parliament. The question that arises is as to whether the description given in the tariff heading can be narrowed down or widened by issue of notification by giving definition in the notification and by issue of a circular. The answer is 'No'. If the Government intended that the definition of Crude Palm Oil for the purpose of assessment should be taken as given in the notification, the proper procedure was to amend the tariff by adding chapter note defining the Crude Palm Oil and not by giving definition of Crude Palm Oil in a notification. The definition given in the notification can have application only for the purpose of that notification. The intention of the Government cannot be indicated by way of issue of circular by the Board. The notification is no doubt valid because being an exemp tion notification, it can restrict the exemption to a particular class of the goods, whereas the scope of tariff heading can be modified only by adding a chapter note or by changing in the tariff heading. We have to hold that the reliance of the Commissioner on the circular is misplaced and the product imported by the appellant has to be held as Crude Palm Oil only "


12. The above decision is squarely applicable to the present case as the department chose to classify the imported goods under Chapter 1511 90 90 based on the acid value and carotenoid content as per description given under SI. No. 34 of the Notfn. 21/2002 and as per the Board's clarification dated 24-9-2003. In consistent with the above Tribunal's decision, we are of the considered view that classification of imported goods should strictly be made as per the chapter note, section note and the description of specific sub-headings read with HSN Explanatory Notes. Main Chapter Heading 1511 covers palm oil and fractions whether or not refined but not chemically modified. Chapter 1511 10 00 covers "crude oil" and Chapter 1511 90 covers "Others". On perusal of records, and test reports, we find there is no dispute on the fact that the goods imported are Crude Palmolein (Edible Grade). It is also not disputed in the impugned order that the appellant is a manufacturer of refined oil and the imported crude palmolein is further refined after clearance and sold for human consumption. When the imported goods conform to the specific description under Ch 1511 10 00 as "crude Oil" and there is no specific chapter note or HSN Explanation specifying criteria of acid value or carotenoid content for classifying the crude oil, therefore the goods imported are appropriately classifiable under Chapter 1511 10 00 of CTH and any specific description given under SI. No. 34 of Notification 21/2002 for the purpose of exemption cannot be taken as criteria for classification of the product under Chapter Heading 1511 90 90 as "Others". The Revenue contention that the description given in a notification should be applicable for classification of goods under Customs Tariff Heading is not acceptable. The citation relied by the Revenue in the case of Orient Weaving Mills (P) Ltd. v. UOI (supra) where the Hon'ble Supreme Court held that Central Excise Rules and notification issued by Government are part of statute is with reference to granting exemption for co-operative society notification issued under Rule 8 of Central Excise Rules whereas the present case is on classification of goods therefore the Hon'ble Supreme Court decision is distinguishable and not applicable to the present case. The decision of Union of India v. Aflon Engineering Corporation (supra) relied by the Revenue is also not applicable to the present case. In view of above facts and circumstances and by following the Tribunal's decision referred above, we hold that imported crude palm oil is rightly classifiable under Chapter Heading 1511 10 00 of CTH and rightly eligible for exemption under SI. No. 29 of Notfn. 21/2002 and not under SI. No. 434 of the notification. The impugned order to the extent of classification of goods under Chapter 1511 90 90 is liable to be set aside.

13. On the quantity of crude palm oil whether duty paid as per actual quantity or as per ullage survey report, Revenue challenged the decision of LAA on the ground that ULLAGE survey report should be taken for the purpose of determining the quantity for assessment. We find that LAA has discussed this issue of quantification in detail at Paras 2 to 6 of OIA and also relied Hon'ble High Court's order in the case of Godrej Industries v. UOI.


14. We find that the department's contention is based on the Board's circular dated 27-12-2002 wherein it is clarified that in the case of oil imported in bulk, the assessment of duty to be done as per the ship's ullage survey report. On perusal of the said circular, we find that the said circular is issued based on the Apex Court's decision in the case of Garden Mills v. UOI (supra). In the present case it is a fact that the imported crude palm oil was not discharged to the shore tank by the vessel at the port of discharge i.e. Pondicherry Port. It is a fact that Pondicherry port did not have facility to discharge liquid cargo to any shore tanks. The vessel was brought to outer anchorage and the imported crude palm oil was transferred to barges and brought to the port and then loaded to the tanker lorry. As rightly contended by the assessees, the tankers were weighed at the port in the presence of customs officers before it is cleared from the port to private warehouse. Therefore, we find that Board's circular dated 27-12-2002 pertains to cases where the liquid cargo is discharged directly to the shore tank where the Ullage survey report and the shore tanker receipt comes into picture. Whereas in the present case the vessel has not discharged imported crude oil to shore tank directly but which are transferred to the barges and loaded into the tankers. The actual weighment of the tankers is done at the port and it is the quantity which should be taken for assessment. Revenue's relying the Tribunal decision in Mangalore Refinery & Petrochem Ltd. v. CC, Mangalore (supra) as well as the Tribunal's Larger Bench decision in Nikhil Refineries (supra) are not applicable to the facts of this case as in both the cases, the goods were directly discharged to the shore tanks by the vessel. But in this case, the crude palm oil is unloaded into barges from the vessel. The Hon'ble Supreme Court in the case of Garden Silk Mills Ltd. (supra) held that import is complete only when the goods are delivered. This plea is reiterated by the Tribunal in the case of Nilkhil Refineries Ltd. (supra) where if there is a case of shortage and the goods not discharged, only the master of vessel is liable for action for short-landing of the goods. Therefore, we find that there is no infirmity in the impugned order in so far as the quantity taken for assessment as per the actual quantity loaded on the tankers in the port. The impugned order in so far as the quantity issue as discussed above is liable to be upheld.

15. In view of the foregoing discussions, we hold that -


(i) the imported Crude Palm Oil is rightly classifiable under Chapter Heading 1511 10 00 eligible for exemption under SI. No. 29 of Noti-fication No. 21/2002-Cus., dated 1-3-2002 as amended.

(ii) The actual quantity loaded on the tankers at the port should be taken for assessment for payment of customs duty. Accordingly, as-sessee's appeal is allowed and the Revenue's appeal is rejected. The cross objections filed by Revenue get disposed accordingly.
(Pronounced in open Court on 10-9-2015)

Equivalent 2016 (334) ELT 0566 (Tri. - Chennai)