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2009 (7) TMI 705 - AT - CustomsEXIM-Iron ore fines export- Department chemist reporting it as 64.6% on moisture free basis whereas export was in moist condition. Held that- report not acceptable as sample was not tested in condition in which goods were exported and report was submitted after three months of export. Report submitted by exporter stating Fe content as 62.03% accepted and export without licence found proper as Fe content as 62.03% accepted and export without licence found proper as Fe content was below 64% prescribed by EXIM Policy 2002-07. Department chemist giving his report of Fe content on moisture free basis held that- report not acceptable as sample was not tested in condition in which goods were exported. It was more so as analysis was done and report submitted after three months of export.
Issues Involved:
1. Whether the export consignment of iron ore fines complied with the Export-Import Policy 2002-2007. 2. Whether the iron ore fines were liable for confiscation under Section 113(d) and 113(i) of the Customs Act, 1962. 3. Whether the exporter was liable for a penalty under Section 114(i) of the Customs Act, 1962. Issue-Wise Detailed Analysis: 1. Compliance with Export-Import Policy 2002-2007: The Export-Import Policy 2002-2007 stipulates that iron ore fines with Fe content up to 64% can be exported freely, while those with Fe content above 64% require a license issued by DGFT or must be exported through MMTC Limited. The exporter declared the Fe content as 62%, but the Chemical Examiner's analysis reported 64.6% Fe content. The exporter contested this, citing analysis by Mitra S.K. Pvt. Ltd. and CIQ, both indicating Fe content around 62%. The Tribunal noted that the Deputy Chief Chemist's analysis was conducted on a moisture-free basis, which was not the condition at the time of export. The Tribunal referenced the Supreme Court's ruling in Union of India v. Gangadhar Narsingdas Aggarwal, which mandates testing in the condition the goods were exported. Consequently, the Tribunal found the Deputy Chief Chemist's report unreliable. 2. Liability for Confiscation under Section 113(d) and 113(i) of the Customs Act, 1962: The show cause notice alleged that the export violated the Export-Import Policy due to the higher Fe content, rendering the goods liable for confiscation under Section 113(d) and 113(i) of the Customs Act, 1962. The Adjudicating Authority upheld this view, leading to the confiscation order and a fine of Rs. 8,57,000/-. However, the Tribunal, considering the discrepancies in the test reports and the legal precedent requiring testing in the exported condition, concluded that the confiscation order was unsustainable. 3. Liability for Penalty under Section 114(i) of the Customs Act, 1962: The Adjudicating Authority also imposed a penalty of Rs. 1,00,000/- on the exporter under Section 114(i) of the Customs Act, 1962. The Tribunal, however, found that the procedural and substantive aspects of the case, including the condition of the goods at the time of export and the reliability of the test reports, did not justify the penalty. The Tribunal emphasized the importance of adhering to the condition of the goods during export for testing, aligning with the Supreme Court's guidance. Judgment: The Tribunal set aside the impugned order, finding it unsustainable due to the reliance on an incorrect test condition. The appeal was allowed with consequential relief, if any, underscoring the necessity for accurate and condition-appropriate testing of export goods.
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