2009 (9) TMI 500 - AT - Customs

Valuation- The loading was completed on 10-3-2007. In the meanwhile export duty of Rs.300/- PMT on Iron Ore was imposed w.e.f. 1-3-2007 and on insistence by the Customs Department the exporter paid the duty under protest on 9-3-2007. Thereafter the exporter filed a refund claim with the department claiming refund of the export duty paid by them on the ground that the date for determination of rate of duty and tariff valuation of export goods is the date on which the proper officer makes the order permitting clearance and loading of the goods for exportation under Section 51 and in this case the order passed for shipment was passed on 28-2-2007 itself by the proper officer. The refund claim was rejected after issue of show-cause notice by the original adjudicating authority but allowed by the Commissioner (Appeals) on an appeal filed by the exporter. Revenue is in appeal against this order of the Commissioner (Appeals) allowing the refund claim to the exporter. Held that- we direct that the appropriate authority shall re-assess the goods under Section 17 of the Customs Act 1962 treating the relevant date for determination of export duty as 1-3-2007. Needless to say the refund claim filed by the exporter would also be reconsidered after assessment and decision taken by the appropriate authority. For this purpose the impugned order-in-appeal is set aside and the matter remanded to original adjudicating authority for a fresh decision after giving opportunity to the exporter to present their case.

Issues Involved:
1. Validity of the assessment order dated 28-2-2007.
2. Determination of the relevant date for the rate of duty and tariff valuation.
3. Applicability of the principle of unjust enrichment.
4. Legality of the refund claim without challenging the assessment order.
5. Compliance with procedural requirements under Section 17 of the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order Dated 28-2-2007:
The Tribunal examined whether the assessment order dated 28-2-2007 was valid. The facts showed that the goods were not available for inspection on 28-2-2007, and the vessel arrived only on 1-3-2007. The proper officer's examination report stating "Inspected the lot" was deemed impossible as the goods were declared to be at Sircaim on that date. Consequently, the order permitting clearance and loading was invalid. The Tribunal concluded that the assessment, examination, and clearance for shipment orders were to be discarded.

2. Determination of the Relevant Date for the Rate of Duty and Tariff Valuation:
The Tribunal analyzed the provisions of Sections 16 and 51 of the Customs Act, 1962, which determine the rate of duty based on the date the proper officer makes an order permitting clearance and loading of goods for exportation. Since the goods were loaded starting from 1-3-2007, the Tribunal held that the relevant date for determining the rate of duty should be 1-3-2007. Therefore, the exporter was not eligible for a refund of the export duty paid.

3. Applicability of the Principle of Unjust Enrichment:
The Tribunal considered whether the exporter had passed the burden of export duty to the purchaser. Article 23 of the contract between the exporter and the purchaser stipulated that any duty imposed in the country of origin would be borne by the seller. The Tribunal found no evidence that the exporter had collected the duty amount from the purchaser, thereby ruling out the applicability of unjust enrichment.

4. Legality of the Refund Claim Without Challenging the Assessment Order:
The Tribunal addressed the contention that the refund claim could not be filed without challenging the assessment order. The Tribunal found force in the argument that the decision of the Hon'ble Supreme Court in Priya Blue Industries Ltd. was not applicable due to the amendment of Section 17, which required a speaking order if the exporter did not accept the assessment. The Tribunal concluded that the refund claim was valid despite not challenging the assessment order.

5. Compliance with Procedural Requirements Under Section 17 of the Customs Act, 1962:
The Tribunal noted that the assessment was provisional as the quantity actually loaded was to be determined based on the draught survey report. The proper officer failed to re-assess the goods based on the actual quantity loaded, as required under Section 17(4). The Tribunal directed the appropriate authority to re-assess the goods and reconsider the refund claim after the assessment.

Conclusion:
The Tribunal set aside the impugned order-in-appeal and remanded the matter to the original adjudicating authority for a fresh decision. The authority was directed to re-assess the goods under Section 17, treating 1-3-2007 as the relevant date for determining the export duty. The refund claim would be reconsidered after the re-assessment, providing the exporter an opportunity to present their case.

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