2019 (8) TMI 975 - AT - Customs

Levy of Export Duty - Iron Ore - tampering with the documents - It is alleged that the appellants connived to ante-date the survey report and other records pertaining to shipment and payment of cess despite non-availability of the vessel till 1st March 2007 with intent to evade the new duty that had been imposed - HELD THAT - The correctness of the demand can be adjudged only in the context of the facts and circumstances coupled with the provisions of law defining the completion of export. Duties of customs are levied through notifications which generally come into force on the midnight of the day of imposition. The process of imports and exports is, invariably, attended by a gap between the loading/landing of goods and their exit/clearance and, in the interregnum, new duties and levies could come into force. Likewise, is the scope for enhancement, or reduction, of duties. It is for that very reason that section 15 and section 16 of Customs Act, 1962 have enshrined, in law, that certain actions and events determine the applicability of new, or altered, levies. In the present context, in connection with the goods entered for export against a shipping bill, it is the date of permission granted for loading that is relevant and is contingent upon compliance with section 51 of Customs Act, 1962. There can be no doubt that date of the initial draft survey, which is contractually necessary to establish quantity loaded, has been overwritten. We have also noted that entry inwards , granted on 28th February 2007 by the proper officer, has also been taken into account though discarded as irrelevant by the adjudicating authority. The adjudicating authority has failed to render a finding on the validity of entry inwards in the circumstances supra and we find no record for ascertainment of the date of entry outwards. Even though these would not, in any way, detract from the sanctity of validly granted let export order , the validity itself could be called into question on findings of facts and circumstances. It is also seen that no conclusions have been drawn from the circumstances in which the demand draft for payment of cess was not deposited on 28th February 2007 despite which let export order was granted. We, therefore, find ourselves unable to decide upon the validity of the let export order granted by the proper officer of customs. Being a controversy over facts, those should have been addressed in the impugned order - matter remanded back to the original authority to ascertain those facts before coming to a conclusion on the veracity of the claim of the appellant that the let export order of 28th February 2007 is valid in law. Appeal disposed off.

Summary

Issues:
1. Allegation of evasion of export duty on iron ore.
2. Ante-dating of survey report and records.
3. Validity of let export order and compliance with Customs Act, 1962.
4. Discrepancies in documentation and date of commencement of exports.
5. Interpretation of Sections 15, 16, and 51 of Customs Act, 1962.
6. Granting of entry inwards and entry outwards.
7. Lack of findings on certain crucial aspects by the adjudicating authority.

Analysis:
1. The case involved allegations against M/s Venture Resort Holdings for evading export duty on iron ore. The dispute arose from the loading of exports at a minor port without discharging the appropriate duty liability against a shipping bill dated 28th February 2007. The demand for duty arose from a new levy effective from midnight of 28th February 2007/1st March 2007.

2. The appellants were accused of ante-dating the survey report and other records to evade the newly imposed duty. The impugned order relied on statements and overwriting in the initial survey report to conclude that exports commenced only after the levy came into force.

3. The contention was raised regarding the validity of the let export order granted on 28th February 2007. The argument was based on Section 16 of the Customs Act, 1962, which specifies that the rate of duty is determined by the date of the proper officer's order permitting clearance and loading for exportation under Section 51.

4. The Authorized Representative argued that the loading of exports could not have commenced before the imposition of export duty. The impugned order highlighted discrepancies in documentation and non-compliance with the requirements of the Customs Act, 1962, regarding the timing of export commencement.

5. The Tribunal analyzed Sections 15, 16, and 51 of the Customs Act, 1962, emphasizing that the date of permission granted for loading is crucial for determining duty liability. The process of imports and exports involves gaps where new duties may come into force, necessitating compliance with specific provisions.

6. The Tribunal noted discrepancies in the granting of entry inwards and entry outwards, crucial for unloading and loading goods respectively. The failure to address the validity of entry inwards and ascertain the date of entry outwards raised questions about the let export order's validity.

7. Due to the lack of findings on essential aspects by the adjudicating authority, the Tribunal set aside the impugned order and remanded the dispute for a thorough examination of facts to determine the validity of the let export order granted on 28th February 2007.