Transocean Offshore International ... vs Commissioner Of Central ...
- CitationAppeal No 30-2014
Ratio decidendi
The rule this decision rests on
Where a test report of a Chemical Examiner on Marine Gas Oil or fuel oil considers only four parameters, and those parameters are common to both Marine Gas Oil and Light Diesel Oil, the product cannot be classified as Light Diesel Oil on that basis alone, particularly where the product meets the specifications of Marine Gas Oil in respect of the tested parameters and the assessee's request for retest has been refused. Where the facts and circumstances are the same as those considered in an earlier final order of the Tribunal in the same appellant's own case, that decision applies to the case before the Tribunal, and the appeal is allowed on that footing, with the pre-deposit requirement waived.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No 30-2014 dated 16/06/2014 passed by Commissioner of Customs, Central Excise and Service Tax(Appeals) , VISAKHAPATNAM ]
For approval and signature:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
Transocean Offshore International Ventures Ltd Transocean House,lake Boulevard Road,hiranandni Business Park POWAI - 400076 MUMBAI Appellant(s)
Versus
Commissioner of Central Excise,Service Tax and Customs Visakhapatnam-ii CENTRAL EXCISE BUILDING, PORT AREA, VISAKHAPATNAM, - 530035 ANDHRA PRADESH Respondent(s)
Appearance:
Shri J.C. Patel, Advocate For the Appellant
Shri S. Teli, Deputy Commissioenr(AR) For the Respondent
Date of Hearing: 01/01/2015
Date of Decision: 01/01/2015
CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20103 / 2015
Per : B.S.V. MURTHY
Since the issue, according to the learned counsel, is already covered by a precedent decision by this Tribunal in the appellants own case on the same issue, we waive the requirement of predeposit and proceed to hear the appeal itself finally.
2. Appellants imported a tug and a barge which were converted from foreign run to coastal run on 26/03/2008. At the time of conversion, representative samples of Marine Gas Oil (MGO) and fuel oil which were found in the tug and the barge were drawn and sent for testing to the Chemical Examiner. The Bills of Entry were provisionally assessed. Even though samples were sent for testing in March 2008, for almost 4 years, the test reports were not communicated and in February 2012 a show-cause notice was issued furnishing the copies of test reports of the Chemical Examiner and requiring the appellants to show cause as to why the goods should not be finally assessed treating them as Light Diesel Oil (LDO). Proceedings initiated were culminated in confirmation of demand for differential duty of Rs.12,49,458/- with interest.
3. Learned counsel on behalf of the appellants submitted that in respect of LDO IS:1460 requires as many as 12 tests to be carried out in respect of various parameters. However, the test report of the Chemical Examiner considered only 4 parameters. He submits that the appellants request for retest was not allowed and further in respect of 4 parameters tested, the specifications of MGO are met and therefore it cannot be held that the goods were not MGO but LDO. He submitted that these 4 parameters are common to both MGO and LDO, without testing other parameters, classifying the product imported in the tug and the barge as LDO cannot be sustained. He relies upon the decision in the appellants own case wherein similar facts and circumstances were considered and this Tribunal held that in such a case, the product imported could not have been held to be LDO and should have been treated as MGO. The decision relied upon is Final Order No.21855-21857/2014 dt. 26/09/2014.
4. After considering the submissions, going through the records and hearing both the sides, we find that the submissions made by the learned counsel are correct and the facts and circumstances considered in the case of the very same appellant in the Final Order referred to by the learned counsel are same and therefore that decision can be applied to the facts of this case also. Accordingly, the appeal is allowed with consequential relief, if any, to the appellant. Stay petition also gets disposed of.
(Operative part of this order pronounced in the court on conclusion of the hearing)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
Raja 2
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free