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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 ..... 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. 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 which may be in the iron ore while arriving at the at the Fe content of the dry metric tons. For the samples drawn by the appellant and given to the Private Laboratories, they have taken up the Test and then given the test results within a period of 6 to 9 days. In the case of Test Reports given by the Chemical Examiner, it is seen that the Tests have conducted with a delay of 3 to 4 months - Department, even after receiving all the documentary evidence, including the Test Report of Private Labs, BRC, etc. from the Appellant, in June 2013, failed to complete the finalization of the assessment of the Shipping Bills. It is seen that the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 55.44 to 57.33. When the Department has drawn samples and se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 the Fe value arrived at by the Private Labs, have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 time of export, namely, on the Wet method a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the confirmed demands under the OIO. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 which may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inspectorate Griffith India Pvt. Ltd. 12. From the above table, it can be seen that the Department has taken about 105 days to 138 days to file their report. Further, it is not seen from anywhere that such reports, though, were generated in November and December 2010, were provided to the Appellant. This deprives the Appellant from approaching higher authorities when the Reports of CRCL are totally different from the Test Reports of Private Labs. Even when the Appellant has provided their Test Reports in June 2013, the Department has not given copies of CRCL Test Reports to the Appellant. Since the Department did not provide the copies of the test report, till they finally issued the Show Cause Notice in 2016, the Appellant was deprived to make any further appeal against the test report already generated by the chemical examiner. The Department, even after receiving all the documentary evidence, including the Test Report of Private Labs, BRC, etc. from the Appellant, in June 2013, failed to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing table has to be taken into account:- AS PER CRCL GOVT AS PER PVT LABS FINAL INVOICES BY PARTY S. No. Shipping Bill No Shipping Bill Date Fe content on Dry Basis Moisture Fe content on WMT Basis Fe content on DMT Basis Moisture Fe content on WMT Basis Fe content on DMT Basis Moisture Fe content on WMT Basis 1 00183 /IOF/ 2010-11 7/24/2010 66.30 7.40 61.39 63.33 9.50 57.31 63.33 9.50 57.31 2 000208 /IOF/ 2010-11 8/10/2010 68.20 5.70 64.31 63.93 8.76 58.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .-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 that there is likelihood of evaporation of moisture and a test conducted after lapse of time would definitely will not give the same iron content which was found at the time of export. The case law relied on by the learned Advocate is also relevant for the present case as in that case also the commodity was iron ore and a similar situation was examined. Moreover, the certificate produced by the appellant has been issued by a reputed testing company. The fact that the sample was not drawn in the presence of departmental officers is not a very strong ground to reject the test results. Hence in my view, the impugned order is not sustainable. I set aside the same and allow the appeal with consequential relief. [Emphasis Supplied] 19. In the case of Mineral Enterprises Limited v. CC, Mangalore-2010 (253) EL ..... X X X X Extracts X X X X X X X X Extracts X X X X
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