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TMI Blog2009 (7) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (J)]. - This appeal is directed against the Order-in-Original No. 06/2006 dated 24-11-2006. 2. The relevant facts that arise for consideration are as under : As per the Export-Import Policy 2002-2007, ITC (HS) Classification of Export Import Vol. 3 Schedule II, Table B, Sl. No. 2601, export of Iron Ore Fines having Fe content up to 64% is permitted to be exported freely, whereas Export of Iron Ore Fines having Fe content above 64% is permitted only through MMTC Limited or under a license issued by DGFT in this regard. As the Exporters had declared that the Fe content of the goods covered under the shipping bill was 62% (i.e. less than 64%) representative sample of the consignment was drawn in the presence of the representative of CHA and export was allowed provisionally on accepting the Bond No. 48/04.03.2005 for an amount of Rs. 8,57,00,000/-pending testing the actual Fe content. The sample was then sent for chemical analysis to the Chemical Examiner, Customs House, Cochin under Test Memo No. 61/18-3-2005. The Chemical Examiner, Central Revenue Laboratory, Customs House, Cochin, after analysis of the sample covered under Test Memo 61/18-3-2005 reported Vide F. No. S-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Exporter appeared to be liable for penalty under Section 114(i) of the Customs Act, 1962. 3. Accordingly, show cause notice dated 27-10-2005 was issued to the appellant asking them to show cause as to why : (i) the 34716.500 Metric Tons (Net Qty.) of iron ore fines valued at Rs. 53234281/FOB and exported under the Shipping Bill No. 1011800 dated 28-6-2004 should not be rendered liable to confiscation under Section 113(d) and 113(i) of the Customs Act, 1962 in terms of the conditions of the bond executed in this regard and, (ii) Penalty under Section 114(i) of the Customs Act, 1962 should not be imposed on them. 4. Appellants contested the show cause notice and submitted that certificate of quality issued by M/s. Mitra S.K. Pvt. Ltd. clearly indicates the Fe content 62.03% and with the amounts received by them is as per the entire contents indicated in the loading port licence is as per the discharge port analysis. The Adjudicating Authority after granting an opportunity of personal hearing, did not accept the contentions of the appellant and held that the goods which were exported are liable for confiscation and coming to such a conclusion he confiscated the goods, direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant in the certificate of analysis given by Mitra S.K. Pvt. Ltd. may be of no consequence as it is to be noted that the test report of Deputy Chief Chemist is final. He would also submit that the Adjudicating Authority has very clearly indicated that the procedure to be followed during the drawal of samples is very clear and the Customs officers has followed the procedure in toto. He would also submit that the adjudicating authority's findings are correct and there is no reason for setting aside the same. 7. We have considered the submission made at length by both sides and perused the records. The issue involved in this case is whether the export consignment of iron ore as cleared by the appellant is in accordance with the law and ITC (HS) Classification of Export and Import, can to be exported freely. On perusal of the said Export-Import policy, we find, that Iron Ore Fines having Fe content up to 64% are permitted to be exported freely, whereas Export of Iron Ore Fines having Fe content above 64% is permitted only through MMTC Limited or under a license issued by DGFT in this regard. 8. We find that the consignment was exported by the appellant on 4-3-2005. Sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed analysis, the iron content in moist lumpy iron ore and moist iron ore fines can be easily determined. That formula has been in fact explained in a Letter dated 23rd June, 1978 addressed by Toman Trading Co. Ltd., a copy of which is at Exh. 'A' to the petition. It appears that following this very method, Italab (Goa) Pvt. Ltd. have Issued certificates as to the iron content in the moist iron ore fines and moist lumpy iron ores exported by the petitioners, and these certificates show that the iron content in these iron ores was to the extent of about 57 per cent. Merely because in respect of moist iron ore the iron content cannot be determined directly by physical analysis this cannot lead to the result that the iron ore content cannot be determined at all or that the petitioners should be deprived of their just claim on that footing which is totally unwarranted by law. The submission of Mr. Rege must, therefore, fail." 9. We also find that revenue aggrieved by such an order and they took this matter in a Civil Appeal before the Hon'ble Supreme Court and the Apex Court [1997 (89) E.L.T. 19 (S.C.)] have upheld the decision of the Hon'ble High Court of Bombay. The ratio of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iner is as follows : "The sample in the form of light brown coloured small limps and powder. It is composed mainly of oxides of iron with small amounts of oxides of Aluminium, Magnesium, Calcium and Silicious matter. % Total Fe : 62.37" As per the Chemical Examiner's report, the iron content is more than 62%. Hence according to the Department the concessional rate of duty would not be available. Now we are also having the Inspection Certificate of quality at the destination Port in China. The results in details as follows : Taurion Iron Steel Company Pvt. Ltd. v. CCE, Visakhapatnam "CHEMICAL COMPOSITION Fe 61.16% AL203 3.30% SIO 2 4.97% P 0.039% S 0.011% Moisture 8.51% Physical Specification Size 0 To 10 MM Above 10 MM 8.10% Below 10 MM 30.75%" In terms of the destination port certificate the iron content is less than 62%. It is seen that in the test report given by the destination Port as well as by M/s. Mitra S.K. Pvt. Ltd., the Chemical composition in terms of iron and other impurities is also given. Particularly, the moisture content ..... 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