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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 ..... llowing 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue is to be allowed on this ground alone. He also submits that the fact that duty was paid under protest, would not help the exporter in view of the fact that it facilitates filing of the refund claim beyond the prescribed time limit under Section 27 of the Customs Act, 1962 and cannot be a substitute for challenging the assessment order. 2.2 He also submits that the exporter is not eligible for the refund in view of the fact that they have not shown that the burden of export duty has not been passed on to the purchasers. 3. Before we proceed further, these two preliminary grounds are to be considered and decided. The learned Advocate, on behalf of the respondent exporter, submitted that the decision of the Hon'ble Supreme Court in Priya Blue Industries case is not applicable to the facts of the present case and in this connection he relies upon several decisions of the Tribunal, which were rendered sub sequent to the decision of the Hon'ble Supreme Court in Priya Blue Industries case. He also submits that the decision of the Tribunal in the case of Cincinnati Milacron Ltd. v. Commissioner of Customs (ACC), Mumbai reported in 2009 (236) E.L.T. 619 (Tri.-Mum.) is directly ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the exporter. 5. The learned Advocate for the Revenue submitted the following facts in support of his contention that on facts of the case, the exporter were liable to pay export duty:- (i) The goods entered for the export were not at Panaji anchorage for being loaded onto the vessel MV Iran Ashrafi at the time of grant of 'let export' permission and passing of the goods for 'shipment on 28-2-2007 by the proper officer of customs. (ii) The examination report given by the proper officer on 28-2-2007 of 'Inspected the lot' was an impossibility inasmuch as the goods entered for export were declared to be at Sircaim on 28-2-2007 and were to be pre-carried by the barges for being loaded onto the vessel MV Iran Ashrafi and it is a fact that the goods so entered for export were loaded onto the said vessel between 1415 hours on 1-3-2007 and 2000 hours on 10-3-2007, and, therefore, the said examination report to that extent was superfluous and could not be said to be correct. (iii) It was an admitted fact that the shipping bill was filed prior to arrival of the vessel MV Iran Ashrafi and they arrived at Panaji anchor age on 1-3-2007. (iv) Section 51 of the Customs Act, 1962 provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the DRI report. According to the DRI report, the vessel arrived at Panaji on 1-3-2007. Notice of readiness was accepted on 1-3-2007 and loading started on 1-3-2007. Therefore, it is his submission that the examination report of the proper officer on the shipping bills is totally false because there were no goods at all for inspection on that date. He submits that as per the DRI report as well as the records maintained by the Port and also the Customs Department, the first barge left from Sircaim at 13.45 hrs.on 28-2-2007 and arrived at Panjim ship side at 11.00 hrs.on 1-3-2007. The first barge which left at 13.45 hrs.on 28-2-2007 could have, at best, arrived by evening of 28-2-2007. He also drew our attention to the fact that as per the DRI report, the barge came alongside only at 11.45 a.m. on 1-3-2007. Therefore, there was absolutely no goods available or inspection by the proper officer. Therefore, the examination report is totally incorrect. Further, he also submits that the next stage of the processing of shipping bills by passing an order passed for shipment also cannot be considered to be a valid one in view of the fact that the examination report is not at all based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port Officer. He drew our attention to the fact that the DRI report shows that the barge came alongside by the vessel on 1-3-2007 at 11.45 hrs, whereas the first barge has left Sircaim at around 13.45 hrs. and, therefore, at least one barge is available for inspection. It is his submission that it is not necessary that all the goods have to be examined and thereafter passed for shipment order is given. He also submits that department's appeal is beyond show-cause notice, which proposed rejection of refund claim only on the ground that relevant date for the purpose of calculation of export duty was date of payment of duty, whereas the present stand taken by the Revenue now is that the assessment was made only on 9-3-2007 and, therefore, that should be taken for the purpose of calculation of export duty. 6.1 The learned Advocate also submitted that in terms of Circular No.30/2003-Cus., dated 4-4-2003, in respect of bulk exports of any goods, the declaration made in the shipping bills are to be accepted without any scrutiny and there would be no physical examination of export consignment. However, it was pointed out to him that the Circular is applicable only in respect of importers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which it is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information. (4) Notwithstanding anything contained in this section, imported goods or export goods may, prior to the examination or testing thereof, be permitted by the proper officer to be assessed to duty on the basis of the statements made in the entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be re assessed to duty. (5) Where any asses done under sub-section (2) is contrary to the claim of the importer or exporter/-regarding valuation of goods classification, exemption or concessions of duty availed consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of goods to be exported by land, a bill of export in the prescribed form. (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents. Section 51. Clearance of goods for exportation.- Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. 8. The scheme of the Customs Act, 1962 in respect of the goods which are to be exported requires the shipping bills to be presented which would contain details of the goods to be exported and a declaration to the effect that the details contained therein are correct to the proper officer; the proper officer thereafter is required to assess the goods in terms of the provisions of Section 17 of the Customs Act, 1962; for the purpose of assessment, he may examine the goods prior to assessment or may accept the declaration given in the shipping bill and assess the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it becomes quite clear that the order of the proper officer as regards examination is to be discarded. Once the order relating to the examination is discarded in view of the fact that the examination of the consignment could not have been done on the same date, the assessment also becomes invalid. Since there were no goods available for examination, the order passed by the proper officer "cleared for shipment" is also invalid and, therefore, is to be discarded. 10. Once it is held that the order passed by the proper officer in respect of examination, assessment and clearance for shipment are to be discarded, naturally, it becomes necessary to decide the relevant date under Section 16 for the purpose of determination of export duty; The show-cause notice issued by the Revenue proceeded on the same assumption that the action taken by the assessing officer was not proper and came to the conclusion that it should be the date of payment of duty for the purpose of determination of rate of duty and value. 11. The learned Advocate on behalf of the exporter took serious objection that the order of the adjudicating authority traveled beyond the show-cause notice since the show-cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for exportation from 1-3-2007 to 10-3-2007. In view of above facts the applicant is therefore required to show cause in writing to the Assistant Commissioner of Customs & Central Excise (ASU), having his office at ICE building, 6th Floor, EDC Complex, Patto, Panaji, Goa as to why the said refund claim amounting to Rs.75,00,000/- and Rs.51,00,000/- should not be rejected." In fact the show-cause notice leaves the issue of determination the relevant date for determination of rate of duty open to be determined at the time of adjudication and the adjudicating authority came to the conclusion that date of payment would be relevant. 12. As discussed earlier in this case, the whole issue .has arisen because the order passed by the proper officer on 28-2-2007, which is not valid. According to Section 16, either we have to determine the date on which the proper officer made an order permitting clearance and loading of the export goods or adapt Section 16(b) and consider the date of payment as the relevant date. It would be not very appropriate to hold that the date of payment of duty would be relevant. That is applicable only when it is not known as to when the goods were exported and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods should have been re-assessed and the assessment order passed. 14. Further, the exporter had paid duty under protest and a claim was made before us by the learned Advocate for the exporter that the assessing officer was required to pass a speaking order since payment of duty under protest by them indicated that they had not accepted the assessment. However, a letter dated 9-3-2007 written by the exporter to the Revenue says that the protest was made to reserve their right to claim the above amount back in case the Government decided to roll back the export duty, even though in the third paragraph of the letter, the exporter stated that the payment is being made without prejudice to their rights and contentions in the matter. Their last sentence clearly says that the protest was only to reserve the right to claim the amount in case the export duty was rolled back. It is not a case of the exporter that the export duty has been rolled back. However, in view of the fact that the quantity of the goods loaded in the ship was less than the quantity indicated in the shipping bill, the re assessment as required under Section 17 was necessary and the same has not been done till date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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