1. This matter, originally was a revision application against the order-in -Appeal passed by the Appellate Collector of Customs, Madras, on being transferred to the Appellate Tribunal, has been taken up as an appeal for consideration.
3. The Steamer Agents, M/s Jairam & Sons, Cochin-2 had preferred a claim for refund of duty amounting to Rs. 23,783.75 forming a portion of the import duty collected under Bill of Entry ID. 136/19-8-71 on the ground that High Speed Diesel Oil and Light Diesel Oil should be assessed to duty at Rs. 189.05 per K.L. as against the duty collected at Rs. 497.70 per K.L. and that the private property of officer and crew should not have been assessed to duty along with ship's other stores.
4. The Assistant Collector of Customs, Appraising Department Custom House, Cochin had rejected the contention of the Steamer Agents as regards the assessment made @ Rs. 497.70 per K.L. in view of the fact that the Steamer Agents had failed to produce any documentary evidence to prove that the Marine Diesel Oil is the same as Light Diesel Oil. As regards the private property of officers and crew, the Assistant Collector found that the party did not produce the previous outward inventory for verification of their statement to the effect that most of the items furnished in the inventory include articles of Indian origin exported previously by the vessel. But so far as the assessment of the crew baggage is concerned, the Assistant Collector admitted the claim to the extent of Rs. 1.096/- which represented the duty collected on articles which are eligible for duty concession under Ceylon Baggage Rules applicable to the crew baggage as the vessel had arrived from Colombo.
5. Aggrieved by the order, an appeal was preferred to the Appellate Collector of Customs, Madras. Before the Appellate Collector, the appellants sought to prove that the oil found on board of vessel was Light Diesel Oil by submitting a certificate from M/s ESSO Eastern Inc.
Bombay. It was also urged by the appellants that in the absence of any samples of oil being taken for test at the time of reversion to coastal run, the assesment made at higher rate is arbitrary. As regards the duty on the private property of officers and crew, the appellants once again reiterated that they are not liable to duty except when they are landed as baggage and the verification made by the Preventive Officer in this behalf cannot be construed as an examination of the baggage.
That apart, the appellants urged that the Customs authorities could not force the officers and crew of the vessel to clear their baggage when they have not signed off from the vessel.
6. The Appellate Collector, after considering the submission made by the appellants, upheld the order of the Assistant Collector in so far it related to higher rate of assessment on the Marine Diesel Oil on the ground that it was incumbent on the part of the appellants to have made a request to the Customs Authorities to draw samples to avoid higher rate of duty and as such in the absence of any such request at the relevant time, they are not entitled to the benefit of lower rate of duty at a subsequent date. However, as regards the levy of duty on the private property of officers and crew alongwith ship's stores was concerned, the Appellate Collector accepted the arguments advanced on behalf of the appellants and set aside the order of the Assistant Collector imposing a levy of duty thereon and remanded the case to the lower authorities for considering the same on merits afresh after following the principles of natural justice.
7. The present appeal is against the order of the Appellate Collector.
Shri R.R. Mehta, appearing on behalf of the appellants strongly contended that the Appellate Collector ought to have taken into account the supplier's certificate (certificate by M/s ESSO Eastern Inc.
Bombay, who supplied the oil) in support of their claim for the levy of a lower rate of duty on the Light Diesel Oil. It was, therefore, contended that the fact of failure to carry out a test of samples by the Customs authorities coupled with the proof of the certificate produced before the Appellate Collector from the suppliers should not have been ignored by the Appellate Collector in upholding the order of the Assistant Collector in this behalf.
8. Shri Kunhikrishnan, JDR, appearing on behalf of the Department drew attention to the relevant provisions of the Customs Act and submitted that samples are not taken invariably nor was it necessary as the expression used in this behalf in the relevant provisions is only "May". Therefore, it was for the party seeking to claim lower rate of duty to insist on samples being taken. Moreover, according to the Departmental Representative, the suppliers certificate could not have been taken as substantiating the claim of the appellants inasmuch as the taking of Light Diesel Oil from M/s ESSO Eastern Inc. could not have ruled out high ditsel also being there "On Board". In brief, according to the Departmental Representative, the appellants have failed to prove by any incontrovertible evidence that Marine Diesel Oil is Light Diesel Oil entitling them for a lower rate of duty. The appeal, therefore, merited rejection.
9. We have carefully considered the submissions made on behalf of the appellant as well as the Department and we are of the opinion that in a case of this kind, instead of taking up a plea that the appellants ought to have insisted on taking of the samples if they had so desired, the Customs authorities themselves could have drawn the sample for test to nullify the claim of the appellants about the character of the oil being Light Diesel Oil. The Department not having drawn any samples of the oil on their own for conducting a test to establish the character of the oil and to establish the correct description of the oil, it would not be proper to draw any adverse inference by totally ignoring the certificate from suppliers produced by the appellants.
10. In the light of the foregoing, we are of the opinion that this is a fit case where the benefit of doubt could be given to the appellants.
The appeal is accordingly allowed and impugned order is set aside.