9911796707
TMI Blog2016 (9) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... found to be arbitrary and without any basis. Appeal allowed - decided in favor of appellant. - C/3499-3501/2012, C/20714/2014 & C/20820-20822/2014 - FINAL ORDER No. A/30704 TO 30710/2016 - Dated:- 5-8-2016 - Ms. Sulekha Beevi, C.S. Member (Judicial) and Sh. Madhu Mohan Damodhar, Member (Technical) Sh. Pradyumna G.H, Advocate for the Appellant Sh. P.S. Reddy, Assistant Commissioner (AR) for the Respondent ORDER The above seven appeals were heard together and disposed by this common order as the issue involved in these appeals are the same. The facts as put forth by the appellant are as follows: (i) Appeal No C/3499/2012 The appellant filed Shipping Bills for export of iron ore fines declaring 57% Fe content and unit price of USD 114 Per Dry Metric Tonne (PDMT); The Shipping Bills were provisionally assessed subject to outcome of test reports mainly as regards Fe content and percentage of moisture; At the time of provisional assessment itself the value was enhanced to USD 120 PDMT and the appellant was required to furnish Provisional Duty (P.D) Bond and Revenue Deposit towards the differential customs duty computed on the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Shipping Bill was provisionally assessed subject to outcome of final test report; As per the final invoice submitted by the appellant the Fe content was found to be 61.04% and the unit rate USD 120 PDMT. The Bank Realization Certificate was also per the final invoice; The Fe content as per the Customs Laboratory report was found to be 59.54%; Even as the Fe Content of 61% declared by the appellant at the time of filing of shipping bills has been accepted, value of USD 136 as adopted at the time of provisional assessment has to be taken for the purpose of final assessment taking on the basis of certain contemporaneous exports; (iv) Appeal No C/20714/2014 The appellant filed a Shipping Bill for export of iron ore fines declaring it to be 56% Fe content and unit rate of USD 80 PDMT; The Shipping Bills were assessed provisionally subject to the outcome of the final test report; The transaction value was not accepted by revenue and the shipping bill was assessed at USD 90 per DMT based on prevailing Metal Bulletin Prices; Duty was collected on the enhanced unit price; As per the final i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 53.10%; Assessment of the shipping was finalized as per the initial declared price but rejecting the penalty imposed by the buyer considering the lesser Fe content; 2. The original adjudicating authorities in these cases have inter alia arrived at the assessable value based upon the Fe percentage content in the ore. In appeal, the Commissioner (Appeals) upheld the orders passed by lower authority and dismissed the appeals of the appellant. The appellant is thus before the Tribunal. 3. The Learned Counsel for the appellant Sri. Pradyumna G.H. reiterated the grounds of appeal and in particular put forward the following submissions: a) As per Section 14 of the Customs Act, 1962 value of export goods shall be the transaction value of such goods that is to say the price actually paid or payable for the goods when sold for export from India for the delivery at the time and place of exportation where the buyer and seller of the goods are not related and price is the sole consideration subject to such other conditions as may be specified in the rules made in this behalf b) In the present case there is nothing on record that the value declared by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or ascertaining its quality and price. The commercial contracts governing its sale, often, contain provisions to adjust the amount payable depending upon the test report at the port of discharge. lt is also reported that exporters present provisional invoices at the time of export since prices are to be finally determined after tests at discharge port. 3. The matter has been examined. In order to bring in uniformity, transparency and consistency in assessment of export of Iron Ore, fines and pellets, it has been decided that the following procedure shall be adopted by all Custom Houses: (a) When a consignment is entered for export of iron ore, fines or pellets, samples shall be drawn in the presence of Customs by following the procedure laid down by the Bureau of Indian Standards for drawal of samples of Iron ore, fines and Iron ore pellets and sent for testing. (b) The declared value of the export goods, shall be scrutinized in relation to the provisional invoice, contract, weight, price, etc., by the proper officer in terms of the provisions of Section 14 and the Customs Valuation (Determination of Value of Export Goods) Rules, 2007 and the Shipping Bill may be pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monitor Bank Realization Certificates (BRC) to satisfy accuracy of assessed value. Viewed in this light, the enhancement of assessable value in these cases are not tenable for the following reasons: (i) In all these cases, the difference in Fe content values found at the load port and that found at the port of discharge by Custom house Laboratory, are definitely within acceptable tolerance limits, the highest percentage difference being just -% as is evident from the following table. Sl.No Appeal No. Fe Declared (%) As per Dept 1. 3499/2012 57.12 58.8 2. 3500/2012 61-62 61.8 3. 3501/2012 61 59.54 4. 20714/56 56 55.27 5. 20820/2014 53 52 6. 20821/2014 55 54.20 7. 20822/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al filed by the Revenue and accordingly, the same is dismissed. Stay application is also disposed of. (iv) In the instant appeals, it is uniformly seen that the test reports of Custom House laboratory have been issued around a month after filing of the shipping bills. It is been consistently held that time factor is important in testing such samples, since there would result increase in Iron content due to evaporation of moisture. For example in the case of Steer Overseas Pvt. Ltd Vs Commissioner Cus CE, Vizag [2010 (250) ELT 308 (Tri-bang)] the Tribunal has held as follows: 5. We have gone through the records of the case carefully. The iron content in the goods exported is 62% according to the Certificate produced by the appellant. The Inspection Certificate of Quality has also indicated the iron content less than 62% namely it is 60%. Only the test conducted by Custom House Laboratory indicated more than 62%. When the appellant requested for re-test of the sample, it should have been immediately acceded to. This was not done. This amounts to denial of the Principles of Natural Justice. Moreover, in testing samples of these types, time factor is important. If there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned orders relating to appeals nos. 20714/2014, 20820/2014, 20821/2014 and 20822/2014, the appellate authority therein has observed as follows: Last but not the least, loading of value basing upon contemporaneous export/contract would have been on strong footing had the Adjudication Authority provided the relied upon evidences to the appellant following Principles of Natural Justice. All that was required to be done was to provide the Shipping Bill, Invoice copy and contract price which were relied upon to load the value. The quantity involved if comparable would have resulted into Department being on sound footing but these basic things which are sacred to rule of law were ignored. Not following Principles of Natural Justice, which is basic to any democratic jurisprudence, is bad in law and ideally I should have remanded the case back to Lower Authority to pass a reasoned order. However, since Act/Rule has not given me power to remand, I proceed to decide the case on merits. From this observation of the appellate authority it is very evident that he had not found the loading of value to be on strong footing. 9. It has also noted that the declared contractual ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
