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TMI Blog2010 (8) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ment per : A.S. Oka , J.]. - The appeal has been admitted on the following substantial question of law : "Whether the Tribunal was correct in holding that the relevant date for assessment of duty, was the date on which the loading of goods started i.e. on 1-3-2007?" 2. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. On 28th February, 2007, a vessel "M.V. Iran Ashrafi" was due to arrive at Panaji port. It is stated that the said port does not have an area for stacking iron ore to be exported and, therefore, the ore has to be loaded by using barges. The appellant presented two shipping bills to the proper officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 51 of the said Act. The refund claims made in respect of both the bills were rejected by the Assistant Commissioner. Therefore, two separate appeals were preferred by the appellant before the Commissioner of Customs (Appeals). By Judgment and Order dated 12th November, 2007, the said appeals were allowed. The said Judgment and Order was challenged in appeal by the respondent. By the Judgment and Order dated 30th September, 2009, the Customs, Excise Service Tax Appellate Tribunal (hereinafter, referred to as "the CESTAT") allowed the appeal preferred by the respondent against the order in appeal. Order of remand was passed by the CESTAT, directing the appropriate authority to re-assess the goods under Section 17 of the said Act by tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said reads thus : "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 the goods for exportation under section 51. (b) in the case of any other goods, on the date of payment of duty. (2)The provisions of this section shall not apply to baggage and goods exported by post." 6. We are concerned with clause (a) of sub-section (1) of Section 16 which provides that in case of goods entered for exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance and loading of the goods for exportation. In the case of Prime Mineral Exports Private Ltd. v. Union of India and another, (W.P. No. 374/2010, decided by this Court on 5th July, 2010 [2010 (257) E.L.T. 414 (Bom.)], in paragraph 7, this Court has observed thus : As per paragraph 40 of the CBEC's Customs Manual of Instructions, on passing of a shipping bill by the Export Department, the exporter has to present the goods to the shed appraiser (export) in docks for examination. The shed appraiser may mark the document to a Custom Officer for examining the goods. If the description and other particulars of the goods are found to be as declared, the shed appraiser gives a "let export order" after which the exporter may contact the preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 51 of the said Act was made on 28th February, 2007. Thus, 28th February, 2007 is the date for determination of the rate of duty. Admittedly, on that day, the export duty was not payable. It became payable with effect from 1st March, 2007. The Commissioner of Customs (Appeals) held that the Let Export Order was issued on 28th February, 2007 and, therefore, both the requirements of filing of the shipping bill and issue of the Let Export Order were completed on 28th February, 2007 and, therefore, the relevant date under Section 16(1)(a) is 28th February, 2007. This aspect has been completely overlooked by the CESTAT. The CESTAT committed an error by holding that the relevant date as per Section 16(1)(a) of the said Act will have to be tre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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