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TMI Blog2023 (8) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... Fe content of 64%. As per the Department, if the Fe content was more than 64%, no export can be taken up by the parties directly and the same had to be exported through Channelizing Agency MMTC Ltd. Only. Therefore, taking the view that the consignment exported were illegally exported by resorting to gross mis-declaration about the 'Fe' content, the Show Cause Notice was issued to the Appellant. In the due course, the Adjudicating Authority held that 161625 MT of Iron Ore Fines having Fe content of more than 64%, valued at Rs.368,21,722/- are liable to be confiscated. He ordered for confiscation of these goods. He gave the option to pay Redemption Fine of Rs. 1 crore. He also imposed penalty of Rs.50,00,000/-. Being aggrieved, the Appellant is before the Tribunal. 2. The Learned Chartered Accountant appearing on behalf of the Appellant submits that at the time of exports, the Appellant could not directly arrive at the 'Fe' content of Dry Metric Ton (DMT for short). Therefore, they had shown in the Shipping Bill, the DMT value of Fe at 63 for all the seven consignments. In case of all the seven consignments, the 'Fe' content on Wet Metric Ton (WMT for short) basis was between 55.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all the Test Reports were made available to the Department within 7 to 9 days time, which makes the Test Reports of Private Lab more reliable. He further submits that the moisture content alone is not sufficient to arrive at Dry Matric Tone Fe value basis. The other impurities also have to be considered to arrive at the DMT Fe content. From the Test Report of the Government Lab, it is not clear whether they have considered such impurities while computing the 'Fe' value of DMT. 3. He further submits that in all the seven cases, the Appellant has realized the amount from the overseas importer based on the Fe content on DMT basis based on the Test Reports given by the Private Laboratories recognized by the Government of India. The Appellant had indicated in their earlier Shipping Bills that the 'Fe' content of DMT was 63 and the same turned out to be between 63.33 to 63.92 in most of the consignments as per the Test Reports of the Private Labs. The overseas importer has paid higher amounts to the Appellant in such cases. On higher amounts realized by them, the Appellant has calculated the amount of Export duty involved and paid the same. The Export realizations which are based on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In these cases, it has been held that not only the moisture content but also the other impurities on account of different minerals also have to be taken into account before arriving at the Fe value of the iron ore. Therefore, relying on these case laws, the consultant submits that in the present case, the Department has not taken into account the Test Certificates filed by the appellant from various reputed testing agencies. He submits that the BRC details submitted to the Department, wherein they have shown that the Overseas Importer has made the payment based on the 'Fe' content at the . Therefore, he submits that the ratio laid down in this case law are squarely applicable case also. He also relies on the decision of the Hon'ble High Court of Mumbai at Goa in their own case wherein the Hon'ble High Court vide Order dated 23rd September 2022 in respect of Writ Petition No. 216 of 2022 has held as under:- 46. We, therefore, find much substance in the contention as urged on behalf of the petitioners that the Fe (iron) content of the iron ore was required to be determined at the second stage as noted above, to be undertaken on the basis the iron ore as it naturally stood at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ron ore only through the channelizing agency of MMTC which was not done in this case. He submits that if the appellant was aggrieved by the Test Reports issued by the Chemical Examiner (CRCL), it was open for the Appellant to challenge the same before the higher authority of CRCL. This was not done by the Appellant. Therefore, they cannot take a stand that ignoring the Test Reports issued by CRCL, the Test Reports of the private Laboratories should be accepted. He relies on the case law of Vishal Lubetech Corpn. vs. Additional Commissioner of Customs Coimbatore-2016 (342) ELT 201, (Madras), wherein it has been held that if the party is aggrieved by the Test Report of the Chemical Examiner, they cannot call for cross-examination of this person since this chemical examiner is one of the Government officials and he is not a witness to the proceedings and no statements have been recorded by the Department from him. Only when such condition exists, the cross-examination can be granted. He submits that since in all the seven cases, the 'Fe' content on Dry Weight basis was more than 64%. Hence, the Appellant was required to take up the exports only through MMTC. Therefore, he justifies th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng talked in this case Fe pertaining to Dry Weight of the iron ore. Therefore, the Fe content on Dry Weight basis, arrived at by the chemical examiner, vis-a-vis the Dry Weight Fe arrived at by the Private laboratories, engaged by the Appellant, have to be considered for this purpose. Therefore, the contention of the Appellant that only the Wet Weight Fe is required to be considered for this purpose cannot be accepted. It is an admitted fact that when the iron ore is received at the port, it is in wet condition with moisture and other impurities. Therefore, the Fe content of Wet Iron Ore is to be taken to arrive at the Fe content of the Dry metric ton as per the formula. On its own, the Wet Metric Ton Fe by itself cannot be considered in this case as the issue pertains to Fe content on DMT basis. 11. From the test reports relied upon by the Department, which have been issued by the chemical examiner, it is seen that they have simply removed the moisture content. They have only taken into consideration the moisture content and arrived at the Fe content of the Dry Metric Tons. From the Test Reports of CRCL, it is seen that they have not considered the content of any other impurities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o complete the finalization of the assessment of the Shipping Bills. It is seen that the Appellant has been regularly taking up with the Department and higher officials, including the Ministry in 2013, 2014, 2015, and 2016 to complete the assessment process but nothing was done by the Department till they issued the Show Cause Notice in August 2018. 13. The Adjudicating Authority in the OIO in respect of the submissions of the Appellant with regard to the variations shown in the Chemicals Examiner's Report has held as under:- From the aforesaid description, it is noticed that it is not proper on the part of the exporter to point any finger at the credibility of the Customs House Laboratory. Therefore, I find the report of the Deputy Chief Chemist, Chemical Laboratory, Customs House, Kolkata to be correct. Even assuming, but not admitting, the contention of the exporter that the 'Fe' content found on the basis of DMT should have been converted to WMT by applying the formula ASTM D 3180-2002, I notice that by their own admission, the sample against Test Memo-No 90/10-11 Dated 10.08.2010 are having Fe content of 64.31% i.e. more than 64% and hence they are not covered under Free Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this table, it can be seen that the Appellant has taken the Fe content of DMT given by the Private Laboratories and has raised the bill based on such DMT values on the overseas importer. Since initially the Appellant has taken the stand that Fe Content on DMT basis is 63 in respect of all the consignments, this resulted in higher payment by the overseas importer. On such receipt of excess amount/ additional amount from the overseas importer, the Appellant has paid the differential export duty. There is no dispute on this issue. This fortifies the Appellant's argument that the overseas importer has accepted the DMT Fe content as given by the private laboratories and made the payment. 18. Coming to the case laws cited by the Appellant, in the case of Alpine International v. CC, Mangalore-2008 (224) ELT 331 (Tri.-Banglore), the Bangalore Tribunal has held as under:- 5. On a careful consideration of the issue, I find that the samples were drawn on 27-8-2005. The Chemical Examiners test report is dated 6-3-2006. From this it is very clear that nearly six months have elapsed from the time of export to the date of testing. There is much force in the learned Advocate's contention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of sample and testing of the sample by the CRCL and the number of days taken by the Private Labs are much lesser in the second case, the values arrived at by the Government Recognized Private Laboratories' Reports are likely to be more accurate, since they had completed the Testing nearer to the date of drawing of samples. The decisions of the cited case law are squarely applicable to the fact of the present case. 21. The Adjudicating Authority was also bound to give proper consideration to the fact that the overseas importer has made the payment based on the DMT Fe content as given by the private labs, which was not done in this particular case. 22. So far as the contention of the Adjudicating Authority and the Learned AR that if the Appellant was not satisfied with the Test results given by the CRCL, they should have approached the higher authorities to get the consignment retested and get another Report, this is not at all possible in this particular case due to delayed delivery of CRCL Reports to the Appellant. 23. From the factual matrix, it is seen that the Test Report itself was generated with a delay of 105 to 138 days, and even after the Test was completed in 2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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