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TMI Blog2009 (9) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... or shipment" on the same date. Thereby permitting the clearance and loading of the Iron Ore for exportation on the same date. However, the vessel MV Iran Ashrafi, by which the goods were to be exported, arrived at the port on 1-3-2007 at about 00.42 a.m. Notice of readiness was accepted by the parties at 14.10 hrs. on 1-3-2007 and entry outward was granted on 2-3-2007. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in writing, the proper officer is required to pass a speaking order within 15 days from the date of assessment of the shipping bills. He submits that in this case, the very fact is that the duty was paid by the exporter under protest, would mean that a speaking order was required to be passed as per the provision of Section 17(5) of the Customs Act, 1962. By not challenging the assessment order, the exporter has not lost the right of the claim for refund and, therefore, the claim for refund is valid and is required to be considered by the Revenue. 3.1 As regards unjust enrichment, he drew our attention to the contract entered into between the purchaser abroad and exporter. Article 23 of the contract provides that any duty or tax in the country of origin and country of destination to be imposed during the continuance of this contract increasing the cost of the ore to be delivered herein, the same shall be paid by the seller to the extent imposed by the country of origin and by buyer to the extent imposed by the country of destination. In view of this, he submits that there is no unjust enrichment in this case. 4. In view of the amendment of Section 17 and also in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents, assessing and verifying the goods to proper duty. (v) In the facts and circumstances of the present case, the duty of Customs, imposed on and after 1-3-2007 under the Second Schedule of the Customs Tariff Act, 1975, was leviable. Since the goods were also assessed to duty of customs on 9-3-2007 within the meaning of Section 51 read with Section 12, 17 and 18 of the Customs Act, 1962, which was a pre-condition for grant of permission envisaged under Section 51 of the purposes of Section 16(1)(a) of the Customs Act, 1962. (vi) In the facts and circumstances, the permission granted by the proper officer of the customs in the present case were not the per missions within the meaning and comprehension of Section 51 of the Customs Act for its being reckoned under Section 16(1) (a) thereof. (vii) The relevant date under Section 16(1) (a) of the Customs Act, 1962 had to be co-terminus with the date of the grant of entry outwards to the vessel under Section 39 thereof in cases where shipping bills under Section 50 thereof was filed prior to the date of grant of such entry outwards, which in this case, was admittedly granted on 2-3-2007. (viii)The export of the goods had alwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, it is his submission that as per Section 16, the proper officer has to make order permitting clearance as well as loading of the goods for exportation and this only would be the relevant date for the purpose of determination of rate of duty and tariff valuation of the export goods. In this case, there were no goods available nor was there any ship available in the port on 28-2-2007 for loading the cargo for export. Therefore, the order passed by the proper officer cannot be taken cognizance of at all. 5.2 Further, he also submitted that according to Section 17 of the Customs Act, the proper officer is required to examine the goods before assessment. Section 17 also provides for assessment prior to the examination of the goods on the basis of declaration made in the shipping bills and the documents produced. It also provides that the goods have to be examined subsequently. It is his submission that as per law no order permitting clearance of the goods for export without examination can be made. In this view of the matter, it cannot be said that there was an assessment on 28-2-2007. The actual assessment took place only on 9-3-2007 and after that the duty was paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is his submission that the Circular has to be seen in the spirit in which it has been issued and not by letter. The spirit of the Circular is that there is no need of examination of bulk cargo being exported and declaration can be accepted. 7. We have considered the submissions made by both the sides. Before we proceed, it would be appropriate to reproduce the relevant provisions of the Customs Act, 1962 to facilitate the discussions: - Section 2(16) "entry" in relation to goods means an entry made in a bill of entry, shipping bill or bill of export and includes in the case of goods imported or to be exported by post, the entry referred to in section 82 or the entry made under the regulations made under section 84; Section 2(17) "examination", in relation to any goods, includes measurement and weighment thereof; Section 16. Date for determination of rate of duty and tariff valuation of export goods. - (1) The rate of duty and tariff valuation, if any, applicable to any export goods, shall be the rate and valuation in force,- (a) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the bill of entry or the shipping bill, as the case may be. Section 34. Goods not to be unloaded or loaded except under supervision of customs officer.- - Imported goods shall not be unloaded from, and export goods shall of be loaded on, any conveyance except under the supervision of the proper officer: Provided that the Board may, by notification in the Official Gazette, give general permission and the proper officer may in any particular case give special permission, for any goods or class of goods to be unloaded or loaded without the supervision of he proper officer. Section 36. Restlictions on unloading and loading of goods on holidays, etc.- No imported goods shall be unloaded from, and no export goods shall be loaded on, any conveyance on any Sunday or on any holiday observed by the Customs Department or on any other day after the working hours, except after giving the prescribed notice and on payment of the prescribed fees, if any: Provided that no fees shall be levied for the unloading and loading of bag gage accompanying a passenger or a member of the crew, and mail bags. Section 39. Export goods not to be loaded on vessel until entry-outwards granted.- The ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty assessed thereon, the proper officer is required to make an order permitting clearance and loading of the goods for exportation; Section 51 requires the proper officer to permit clearance as well as loading of the goods. Section 16 of the Customs Act, 1962 is relevant to determine the date for determination of rate of duty and tariff valuation of export goods; according to Section 16 in the case of the goods entered for export under Section 50, the rate of duty and valuation will be as on the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation under Section 51. The scheme of the Act as described above would show that even though the officer may complete assessment even before the goods are available for examination, yet the date for determination of rate of duty and tariff valuation would be the date on which the proper officer makes an order permitting clearance and loading of the goods as per the provisions of Section 51 for exportation. 9. When we apply the scheme envisaged under the Act as discussed above to the facts of this case here, it becomes quite clear that the rate of duty in this case cannot be as on 28-2-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be taken for the purpose of calculation of export duty; We find that in this case, no doubt, such a stand was taken in the show-cause notice, we have to take note of the fact that there is no dispute as regards the fact and the dispute is only regarding the interpretation. The interpretation is on the law as to whether in the facts and circumstances of the case what should be the date for the purpose of determining the rate of duty. This is purely a legal question and it is settled law that legal question/issue can be raised at any stage of the process. Therefore, we cannot find fault with the order-in-original for taking a stand that the relevant date should be the date of payment of duty. In fact the reproduction of the relevant portion of the show-cause notice given below would help in appreciation of the fact better:- "Whereas the said Iron Ore ROM & Lumps to be shipped and exported had not entered the Panaji Port on 28-2-2007 nor had the said goods been presented for inspection on 28-2-2007 by the applicants to the Customs Officers at the Port, but same were actually presented for inspection only on 2-3-2007. Whereas, the said Iron Ore ROM & Lumps were actually sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the shipping bill is assessed and permission is given by the customs officer to commence loading. The only option and correct option available would be to determine the rate of duty as on the date on which the loading of the goods started specifically in view of the fact that in this case, arrival of the ship as well as loading started on 1-3-2007 and that too with the approval of the customs. Once it is held that 1-3-2007 is the relevant date for deter mining the rate of duty, the exporter becomes ineligible for the refund of export duty paid. 13. Another point that has been missed by almost everyone in this case is the fact that at the time of writing the physical examination report, the proper officer had clearly written that quantity actually loaded will be determined on the basis of draught survey report. Therefore, in this case even though it was not specifically stated, the fact remains that the assessment was provisional and was subject to actual quantity loaded on the ship. In fact in the case of the shipping bill No. 281/06-07 dated 28-2-2007, the actual quantity shipped was only 24,445 MTs. Consequently, the cess payable would come down to Rs.24,445/- and the expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd applicable in the present case since the protest can be interpreted to mean that it was only in respect of roll back or it covers other aspects. 15. The issue before us involved a set of facts and circumstances, which are not comparable to facts and circumstances, cited before us in any other case and, therefore, we are not discussing all the case cited before us after considering the same and finding them not relevant. Further, we also like to make it clear that the conclusion drawn here that the relevant date for determination of rate of duty have been reached in view of the peculiar facts and circumstances of the case. 16. In view of the above discussion, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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