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TMI Blog2019 (7) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... iron content. None of the three test reports are perfect. The test reports produced by the appellant are detailed and elaborate and indicate Fe content of below 62%. However, the samples were collected behind the back of the Customs Officers. Therefore, there is always a doubt as to how the samples were drawn. The test reports are as good as samples drawn. One cannot be termed a diabetic or HIV positive based on a blood test unless it is certain that it was his blood which was tested and not the blood of anybody else - Similarly, the test reports cannot be relied upon unless the samples were drawn authentically from the export goods. In this respect, the only authentic sample which was drawn was sent to the Chemical Examiner because it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 62/2007-Cus, dated 03.05.2007, which reads as follows: "Iron Ore Fines - Effective rate of export duty In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts iron ore fines of Fe content 62% and below falling under heading No. 11 of the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975), when exported out of India, from so much of the duty of customs leviable thereon which is specified in the said Second Schedule, as is in excess of the amount calculated at the rate of ₹ 50 per tonne." 2. The appellant declared the iron content in their Iron ore fines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide his speaking order No. 2/2008-Cus, dt. 17.03.2008, finalised the assessment denying the benefit of exemption notification and confirmed the differential duty of ₹ 1,03,27,000/- along with interest. Aggrieved, the appellant appealed to the first appellate authority who upheld the order. In the earlier round of litigation, the Tribunal had directed that a copy of the test report to be provided to the appellant and it has been so provided. 6. Ld. Counsel for the appellant submits that there are three test reports in this regard, two of which were by the Laboratories which are detailed and spell out the methodology adopted to determine the Fe content and the results. One was done at the Load Port and the other one was done at the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iron contents from the rest of the impurities inclusive of moisture and thereafter ascertain in which category the lumpy iron would fall for the purpose of charging duty….' 3. In light of the observation by the Apex Court that export duty is chargeable according to Fe contents, and to maintain uniformity all over the custom houses, it is clarified that for the purpose of charging of export duty the assessment of Iron ore for determination of Fe contents shall be made on Wet Metric Ton (WMT) basis which in other words mean deducting the weight of impurities (inclusive of moisture) out of the total weight/Gross Weight to arrive at Net Fe contents. 4. In case of any difficulty in arriving at the net Fe content, assessment may be b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantiated by their test reports at the Discharge Port and Load Port should be considered. 8. Countering the arguments, Ld. DR submits that firstly, there is only one test report which was based on an authentic sample. The sample in case of the test report by the Chemical Examiner was drawn in the presence of both Customs Officers and the exporter. Both have duly signed on the test memo. This is the only test report which is based on the sample which is drawn authentically. As far as the other two reports are concerned, there was no Customs Officer when the samples were drawn. Section 144 of the Customs Act empowers the proper Officers of Customs to take samples of goods which have been imported or being exported for the purpose of examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reports are perfect. The test reports produced by the appellant are detailed and elaborate and indicate Fe content of below 62%. However, the samples were collected behind the back of the Customs Officers. Therefore, there is always a doubt as to how the samples were drawn. The test reports are as good as samples drawn. One cannot be termed a "diabetic or HIV positive" based on a blood test unless it is certain that it was his blood which was tested and not the blood of anybody else. Similarly, the test reports cannot be relied upon unless the samples were drawn authentically from the export goods. In this respect, the only authentic sample which was drawn was sent to the Chemical Examiner because it was drawn in the presence of Customs Off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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