2015 (8) TMI 730 - HC - Customs

Concessional Rate of duty Export of ROM (Mixture of Iron Ore Fines and Lumps) - Benefit of Notification No. 62/2007 Appellant lodged claim for refund seeking benefit under Notification No. 62/2007-Cus. whereby concessional rate of duty was allowed in respect of iron ore fines Said claim was rejected by adjudicating authority and rejection was upheld by Commissioner CESTAT also maintained order of Commissioner (Appeals) Held that - commodities exported were declared in shipping bills as ROM (Mixture of Iron Ore Fines and Lumps), and accordingly duty was paid at applicable time rate As per notification, it exempted iron ore fines of Fe content 62% and below falling under heading No. 11 of Customs Tariff Act, 1975 appellant has mentioned that exporter purchased iron ore without segregation They did not have screening facility for segregation of iron in fines and lumps but because of huge demand from China on account of Olympics, appellant was required to export iron ore in its virgin form which was acceptable to buyer As segregation of mixture to arrive at quantity of fine for which concessional, was not possible, higher duty was to be charged Thus, order passed by CESTAT was reasoned and accordingly upheld Decided against Assesse.

Issues Involved:
1. Maintainability of the appeal under Section 130 of the Customs Act, 1962.
2. Classification and valuation of the exported goods.
3. Refund claim rejection and the requirement of challenging the assessment order.
4. Allegation of the CESTAT delivering a non-speaking order.

Detailed Analysis:

1. Maintainability of the Appeal:
The primary issue to be decided was the tenability of the appeals under Section 130 of the Customs Act, 1962. The appellant argued that the appeal before the High Court was maintainable as it questioned a non-speaking order by the CESTAT. The appellant relied on several judgments to support this contention, including those from the Gujarat High Court and the Bombay High Court. The respondent countered that the dispute was fundamentally about the classification of the exported commodity, which should be addressed by the Supreme Court as per the provisions of Sections 12, 14, 129D, and 130 of the Customs Act. The court upheld the preliminary objection raised by the Revenue, citing the judgment of the Hon'ble Apex Court in "Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs" and similar cases, concluding that the appeal involved issues related to the rate of duty and valuation, thus falling outside the jurisdiction of the High Court.

2. Classification and Valuation of Exported Goods:
The appellant exported a mixture of iron ore fines and lumps (ROM) and paid normal customs duty under protest. The appellant sought a refund under Notification No. 62/2007-Cus., which allowed a concessional rate for iron ore fines. The adjudicating authority rejected the refund claim, and the decision was upheld by the Commissioner (Appeals) and the CESTAT. The CESTAT noted that the appellant declared the goods as ROM and did not challenge the assessment orders. According to public notice No. 14/2011, if segregation of lumps and fines was not possible, the entire consignment was to be charged at the higher rate applicable to ores other than fines. The CESTAT concluded that the assessment order was appealable under Section 28 of the Act and could not be challenged in a refund claim.

3. Refund Claim Rejection:
The appellant argued that there was no order under Section 17(5) of the Customs Act, thus justifying their refund claim. The CESTAT, however, found that the appellant did not challenge the assessment orders and relied on the Supreme Court's judgment in "CCE, Kanpur v. Flock (India) Pvt. Ltd." and "Priya Blue Industries Ltd. v. CC (Preventive)" to conclude that a refund claim could not be maintained unless the assessment order was modified. The CESTAT also distinguished the judgment of the Calcutta High Court in "Kothari Metals Ltd. v. Union of India," noting that the relevant Supreme Court judgments were not considered in that case.

4. Allegation of Non-Speaking Order:
The appellant contended that the CESTAT's order was non-speaking as it failed to consider written submissions and arguments regarding the concessional rate under Notification No. 62/2007. The High Court reviewed the CESTAT's judgment and found that it had taken note of the facts, contentions, and relevant notifications. The CESTAT's judgment was deemed reasoned and not a non-speaking order. The court concluded that any omission by the CESTAT to consider some contentions or an erroneous finding on merit did not render its order non-speaking.

Conclusion:
The High Court upheld the preliminary objection raised by the Revenue, finding the appeals not maintainable before the High Court. The CESTAT's order was considered reasoned and not a non-speaking order. The appeals were dismissed with no costs.

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