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TMI Blog2014 (4) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... economists principle of Indirect Tax - On the contrary, the present export duty on Iron Ore could have been levied by the legislature to discourage export of Iron Ore from the Country, with an objective to make it unviable for exporters, who ultimately have been intended to be saddled with the levy, instead of passing on the burden to the purchaser – No substance in the plea of the Appellant that FOB price be treated as cum-duty price and not the transaction value, as prescribed under Section 14 of the Customs Act, 1962 - Appeals are rejected – Decided against appellants. - APPEAL NOs. C/A/114-115/2010, APPEAL NOs.C/A/1A & 31-40/2011, APPEAL NOs.C/A/154-162/2011, APPEAL NOs.C/A/171-173/2011 AND APPEAL NOs.C/A/223-228/2011 - ORDER NO.FO/A/71188-71218/2013 - Dated:- 12-12-2013 - DR. D.M.MISRA AND DR. I.P.LAL, JJ. FOR THE APPELLANT : SHRI R.PATODIA, FCA FOR THE RESPONDENT : SHRI S.CHAKRABORTY, A.R.(ASSTT. COMMR.) JUDGMENT Per Dr. D.M. Misra: These Appeals are filed against the afore-mentioned Orders-in-Appeal passed by the ld. Commissioner (Appeals) Bhubaneswar. Since the issue involved is common, accordingly, all these Appeals, are taken up together fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay these duties/taxes. It is the commodity which bears the incidence of tax and carries with it the burden of tax. It is his submission that all these aspects are not considered by the Tribunal, while deciding the case on similar issue, reported as Sesa Goa Ltd. vs. CCE ST, Goa, 2012(277)ELT 105(Tri.-Mum.). 4. Per contra, ld. AR for the Revenue reiterates the findings of the ld. Commissioner (Appeals). He has submitted that the issue is no more res-integra and is covered by the decision of this Tribunal of Mumbai Bench of this Tribunal in the Appellant s own case. Further, he has submitted that the incidence or nature of Customs Duty, which is popularly called as an indirect tax, cannot, in any manner, be the decisive factor for determination of value of export goods under Section 14 of Customs Act,1962. 5. Heard both sides and perused the records. Undisputedly, the period involved in the present case is after 01.01.2009 and the issue of similar nature has been cropped up recently before the Co-ordinate Bench at Mumbai. Analysing the issue in detail and considering the arguments advanced by both sides, relevant statutory provisions and various case laws on the subject, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 8. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf: According to the above provision, the value of the export goods shall be the transaction value of such goods, i.e. to say, the price actually paid or payable for the goods when sold for export from India for delivery at the time and place of exportation. As it is not the case of the Revenue that the sellers (exporters) and the overseas buyers of the goods are related, what needs to be examined in this case is whether the FOB price of the subject-goods should be taken as the transaction value of the goods. It is not in dispute that the price actually received by the appellants from their overseas customers as consideration for iron ore exported by them was FOB price. The only case of the appellants is that the export duty element should be allowed to be deducted from this FOB price to arrive at the transaction value of the goods for the purpose of assessment to export duty. We have not been able to discern anything from the above provision of law so as to acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant provisions of the Customs Act and its applicability to the present case, as stated above, by the Co-ordinate Bench at Mumbai. 7. The second line of argument advanced by the ld. CA for the Appellant, which he claims, has not been taken note of by the Mumbai Bench, is that the Customs Duty, being an indirect tax and an indirect tax by its nature, is always passed on to others; hence, if the duty cannot be passed on, then the same ceases to be an Indirect tax and accordingly, is contrary to the principle of levy of Indirect tax. Putting in its simpler version, his argument is that in the present case, since the Customs (Export) Duty cannot be passed on to the overseas purchaser, by adding it to the FOB value, in view of the stipulation in the contract of sale, therefore, the FOB value be considered as Cum-Duty Price, so as to make the export duty compatible with its nature as an Indirect Tax. We do not find merit and substance in the said argument of the ld. CA for the Appellant. The principle has been well settled by the Hon ble Supreme Court in a catena of cases. While examining the vires of the retrospective legislation relating to excise duty, in the case of Chhot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal tax and a tax of a different nature or category if imposed retrospectively, because it was then incapable of being passed on, does not correctly represent the law as laid down by this Court. In common with duties of customs and excise, a tax on the sale of goods is another instance of a typical indirect tax. Indeed Lord Thankerton pointed out in 1934 AC 45: The ultimate incidence of the tax in the sense of the political economist is to be disregarded and referred to a tax imposed in respect of some dealings in commodities such as their import or sale or production for sale as instances of indirect taxes, the tax not being a peculiar contribution upon one of the parties to the trading in the particular commodity selected as the tax-payer. The question of the validity of the imposition of a sales tax with retrospective effect came up for consideration before this Court in the Tata Iron Steel Co. Ltd. v. State of Bihar, 1958 SCR 1355. An argument similar to the one now presented before us was submitted to this Court in challenge of that levy which was summarized by Das. C.J. in these terms: The retrospective levy by reason of the amendment of Section 4(1) (of the Biha ..... 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