2009 (1) TMI 272 - AT - Customs

Determination of Rate of export duty relevant date - At the time of filing of the shipping bills, only Cess was leviable on Export of Iron ore. However on 1-3-2007, an Export duty was imposed and by the time, the entire loading had not been completed. Therefore the Department took the contention that in respect of the goods which have not been loaded so far, as on 1-3-2007, they have to suffer the Export duty at the rate of Rs. 300/MT held that - The assessment has been done prior to the imposition of Export duty, i.e. on 1-3-2007 arid the duty/cess determined in this case has already been collected prior to 1-3-2007. Nothing can prevent for the export of the consignment and the later changes in the rate of duty would not be relevant. - of the entire quantity covered by the two shipping bills, no export duty would be leviable as the order permitting clearance and loading has been done even prior to 1-3-2007 which is prior to the imposition of Export duty

Issues Involved:
1. Relevant date for the determination of export duty.
2. Applicability of the export duty imposed on 1-3-2007 to goods already assessed and in the process of loading.

Detailed Analysis:

1. Relevant Date for the Determination of Export Duty:

The primary legal question revolves around determining the relevant date for levying export duty. According to Section 16 of the Customs Act, 1962, the rate of duty applicable to export goods is the rate in force on the date the proper officer makes an order permitting the clearance and loading of the goods for exportation under Section 51. This section explicitly states:
- "The rate of duty and tariff valuation, if any, applicable to any export goods, shall be the rate and valuation in force, in the case of goods entered for export under section 50, on the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51."

In this case, the appellants filed two shipping bills and complied with the procedures prescribed under the Customs Act, 1962. The proper officer issued an order under Section 51, permitting the clearance and loading of the goods for exportation. This order was issued before the imposition of the export duty on 1-3-2007.

2. Applicability of the Export Duty Imposed on 1-3-2007:

The department contended that the export duty imposed on 1-3-2007 should apply to the goods which had not been loaded by that date. The appellants paid the duty under protest and later challenged the demand. The Commissioner (Appeals) upheld the department's view, stating that the date of the "boat note" order is the relevant date for determining the export duty, not the date of the customs authorities' clearance order.

However, the Tribunal found this view incorrect. The Tribunal clarified that the boat note, which is issued for the transport of goods by boat to the ship, has no relevance to the assessment of goods for export duty purposes. The Tribunal emphasized that the relevant date is the date on which the proper officer makes an order permitting the clearance and loading of the goods for exportation under Section 51.

The Tribunal also referred to the Supreme Court decision in Union of India v. Asian Food Industries, which supports the view that the actual permission of the proper officer granting clearance and loading of the goods for exportation is the relevant date for determining the export duty. The Tribunal noted:
- "What would be relevant for the said purpose would be actual permission of the proper officer granting clearance and loading of the goods for exportation. As soon as such permission is granted, the procedures laid down for export must be held to have been complied with."

In this case, the proper officer had permitted the clearance and loading of the goods for exportation on 14-2-2007 and 26-2-2007, respectively, which were before the imposition of the export duty on 1-3-2007. Therefore, the Tribunal concluded that the export duty introduced on 1-3-2007 would not apply to the goods covered by the two shipping bills.

Conclusion:

The Tribunal held that the relevant date for determining the export duty is the date on which the proper officer makes an order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act, 1962. Since the proper officer had issued such orders before the imposition of the export duty on 1-3-2007, the export duty would not apply to the goods covered by the two shipping bills. The appeal was allowed with consequential relief.

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