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2017 (7) TMI 629

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..... s for a refund claim of the export duty paid when the discharge port analysis report indicates Fe-content as less than 62%, Revenue will not entertain such a claim on the ground that the export duty liability correctly discharged as and when the goods are presented for examination. Appeal allowed - decided in favor of appellant. - C/611/2012 - A/30776/2017 - Dated:- 13-6-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu Mohan Damodhar, Member(Technical) Sh. G. Prahlad, Advocate for the Appellant. Sh. Arun Kumar, Deputy Commissioner (AR) for the Respondent. ORDER [Order per: M.V. Ravindran] 1. This appeal is directed against the Order-in-Original No.08/2011 dated 28.12.2011. 2. The issue that falls for consideration in this appeal is whether the appellant is required to pay the differential customs duty in respect of the goods exported. 3. It transpires from the records that appellant herein had exported iron-ore fines by filing shipping bill no.2202792 dated 18.05.2007 declaring the quantity intended for export as 66350 MT @ US$ 67.40 PMT FOB. The appellant also declared the Fe-content in the iron-ore as 62% and on analysis of the said .....

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..... that when the goods were exported there was declaration that Fe-content was less than 62% as per the analysis report. He would submit that contract entered by the appellant with the buyers clearly indicated the payments to be made based upon the Fe-content at port of discharge which was more than 62%. He would submit that the buyer has made additional payment on the invoices raised by appellant on the basis of Fe-content at the port of discharge, but did not pay the customs duty which itself is indicative of the intention of the appellant. 6. We have considered the submissions made by the both sides and perused the records. 7. Undisputed facts are that the appellant s consignment of iron-ore fines which was exported by shipping bill dated 18.05.2007 were found to have 61.52% of Fe-content when presented for assessment, based upon the analytical report of M/s Mitra SK Pvt Ltd., who are authorised testing laboratory of the customs department. Based upon such analytical analysis of Fe-content, appellant discharged the export duty on the consignment @ ₹ 50 PMT. The department s case is that the appellant had received additional payment from the buyers of iron-ore fines, ba .....

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..... s. The appellant had declared particular percentage of Fe-content while discharging the export duty and when the goods were delivered to buyer, the Fe-content was found to be less than what has been declared, according the said appellants were paid less consideration for the consignment. Appellant therein sought the refund of the excess amount of the duty export paid by them from customs department. The matter was agitated by the Tribunal Bench of Mumbai [wherein one of us Shri M.V. Ravindran was also a Member and authored the order] held as under: 6. On perusal of the records and on consideration of the submissions made by both the sides, we find that the issue involved in this case is regarding the correct value to be adopted as per Section 14 of the Customs Act, 1962 for the demand of duty of the goods exported. 7. Undisputed facts are that the appellant filed two shipping bills for export of iron ore fines to China declaring the Fe contents as 52% and 54% and also brought on record the contracts entered into by them. The contracts entered into by the appellant with the overseas purchaser says that the price agreed upon was conditional upon the Fe content as ascertained .....

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..... determination of value for the purposes of this section : Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill of export, as the case may be, is presented under section 50. (2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. Explanation. - For the purposes of this section - (a) rate of exchange means the rate of exchange - (i) determined by the Board, or (ii) ascertained in such manner as the Board may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) foreign currency and ''Indian currency have the meanings respectively assigned to them in clause (m) and clause (q) of section 2 of .....

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