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TMI Blog2014 (9) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... or others as deems fit. 2. The deponent is the Director of M/s. Shiva Shankar Minerals Pvt. Ltd., Hyderabad (hereinafter referred to as "petitioner"). The petitioner's company is an exporter of iron ore and on 25-9-2008 the petitioner exported iron ore fines vide Shipping Bill No. 76/2008-09 through Krishnapatnam Port on payment of customs duty and cess thereon as provided under Section 142 of the Act. However, as per the Circular issued by the 2nd respondent - the Central Board of Excise and Customs Department of Revenue (in short "C.B.E. & C.") vide Circular No. 18/2008-Cus., dated 10-11-2008 that for the exports made prior to 1-1-2009, the transaction value shall be calculated taking the 'FOB' price of the goods as cum duty price i.e. FOB is to be taken as inclusive of customs duty, but the Customs Department assessed the export duty on 'FOB' value of the goods without deducting the duty element from 'FOB' and the same is against the C.B.E. & C. Circular dated 10-11-2008 and collected export duty of Rs. 51,43,147/- in excess to that payable by the petitioner. Since the petitioner exported the iron ore prior to 1-1-2009, the value for determination of customs duty should ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable." 5. Further, the learned counsel for the petitioner relied on the judgment of the Supreme Court reported in Asia Pacific Commodities Ltd. v. Assistant Commr. of Cus., Kakinada-I [2012 (280) E.L.T. 481 (A.P.)] wherein it was held as follows : "16. The appellants exported long grain rice under various shipping bills. The cess paid for each consignment is not separately shown though it is prominently mentioned in each of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount from the date when the refund became due. This position has been formally accepted by the Government of India also based on the decisions of the High Courts and the Supreme Court as is evident from Exts.P3 and P7. When by Ext. P3 and P7, the Government of India themselves have reminded all the officers under them of the necessity to make refunds consequent on appellate orders expeditiously, the petitioner in the review petition cannot act as a super government, insisting on documents, production of which is not mandated by any rule, order or circular." 7. After hearing both the parties concern, the appellate authority in an elaborate order held in its Order-in-Appeal No. 7/2009(G) Cus., dated 12-8-2009 that the filing of the refund claim itself is a challenge of assessment order and the appellant is entitled to claim reassessment in terms of their refund application. The relevant portion of findings have been extracted hereunder :- "(8) I have given due consideration to the rival submissions. After perusing all the case laws relied by the appellants in support of their various arguments, I find substance in their arguments. However, I wish to discuss only the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be corrected under Section 154 of the Customs Act, 1962. The Assistant Commissioner was bound to correct the error or omission as provided under Section 154 and reassess the shipping bill under Section 17(4) of the Customs Act, 1962. Therefore, the rejection of the claim for refund is not justifiable in law. (9) The other point for decision is, whether the FOB price, for the purpose of assessment under Section 14(1) of the Customs Act, 1962, is to be taken as the assessable value or the FOB price, treating it as inclusive of the duty component and working backwards to arrive at the assessable value, has to be taken in terms of the Board's Circular No. 18/2008-Cus., dated 10-11-2008." (9.1) .............. (intentionally omitted as not necessary) (9.2) From a plain reading of the above circular it is evident that, export duty and cesses have to be calculated by taking the FOB price declared by the exporter as the cum-duty price and working backwards from the FOB price. Board has specifically clarified that this practice is to be followed up to 31-12-2008. Since the appellants have paid the customs duty before 31-12-2008, I find that the Board's circular is rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby disputing that the petitioner's entitlement to the amounts of refund as claimed. 10. At this stage, we may record that what has been stated in Para Nos. 9 to 11 are the contentions/objections which have been raised for the first time before this Court in the affidavit and on perusal of the Order-in-Original, the order-in-appeal and final order of the Tribunal, one does not find these contentions/objections having been raised by the respondents in the original proceedings. As a matter of fact, the petitioner by filing reply affidavit in para-7 categorically stated as follows : "the contents of para 9, 10 and 11 are extraneous to the present proceedings. In the appeal filed before the Hon'ble CESTAT none of these contentions and none of these difficulties were raised. The grounds of appeal were limited to one contention that the assessment order was not challenged and in the absence of challenge refund could not be sanctioned. The grounds not raised in appeal cannot be raised in the writ petition. The difficulties in the implementation of the order passed and how the final order passed is to be implemented could be addressed to the Hon'ble CESTAT seeking clarification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004; (ii) Whether assessment of the impugned Shipping Bill is provisional or final and (iii) Whether the calculation adopted by the Adjudicating authority treating the FOB value as transaction value and that duty needs to be paid on the transaction value is correct? Or treating the F.O.B. value as cum-duty value, duty element should reduce from the F.O.B. value for the purpose of levying export duty in the light of the Board's circular No. 18/2008-Cus., dated 10-11-2008." 13. The Tribunal also held as follows : "(8.3) In the case of "Union of India v. Aluminum Industries Ltd.," the Hon'ble High Court of Kerala held that, "assessment made under wrong impression about prevalent rate of duty is a case of omission and not a case of short levy". Further, in the case of "Commissioner of Customs, New Delhi v. Hero Honda Motors Ltd.," the Tribunal after duly considering the Apex Court's decisions in the cases of "Karnataka Power Corporation", "Flock India" and "Priya Blue" has held that the assessee cannot be denied the benefit merely because he did not refer appeal against the assessment order and that the authorities ought to take remedial action under Section 154 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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