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TMI Blog2023 (9) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... of the total weight/Gross Weight to arrive at Net Fe contents. While finalizing the assessment of subject S/B, the assessing officers have overlooked the most important aspect of assessment, namely, determination of Fe content for the purpose of classification/rate of duty applicable - This method of determining Fe content in WMT is elaborately by discussed by Hon ble High Court of Bombay in case of V M Salgaokar Brothers [ 2022 (9) TMI 1306 - BOMBAY HIGH COURT] . The Court mentions that it is universally recognised and followed for determination of Iron content in natural iron fines. The assessing officers directed to determine Fe content on WMT basis by deducting the moisture given in the test reports of NABL accredited government approved Private Laboratory - it is directed to convert the %age of Fe on DMT basis to %age of Fe on WMT basis by applying the universally recognised formula for determination of classification of IOF exported - it is directed to finalise the assessments accordingly. The impugned orders are set aside - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... assification of the goods - which fixes the rate of duty. Both exporter and Department agreed on the ascertained Transaction Value calculated as per the Contract. 6. The ld.A.R. for the Revenue justified the impugned orders. 7. Heard both sides and perused the appeal records. 8. We find that the issue under dispute in these cases is whether for deciding the classification and rate of duty payable, the Fe %age of Iron Ore Fines is to be determined on Dry Metric Ton (DMT) basis or Wet Metric Ton (WMT) basis. 9. The issue stands decided as early as 1997 by Hon'ble Supreme Court in the case of Union of India Vs Gangadhar Narsingdas Aggarwal - 1997 (89) ELT 19(S.C.) and subsequent CBEC Circular No. 4/2012- Cus dated 17.12.2012 which was issued for adoption of uniform Customs procedure in all Customs Houses. In the said Circular, it was stipulated that for the purpose of charging of export duty the assessment of Iron ore, determination of Fe contents is required to be made on Wet Metric Ton (WMT) basis which in other words mean deducting the weight of all impurities (inclusive of moisture) out of the total weight/Gross Weight to arrive at Net Fe contents. 9.1 The rate of duty was be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld "…. 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"[.emphasis added] (No Appeal) v) This issue was also discussed and decided by the Tribunal in the case of Oblapuram Mining Company Pvt. Ltd. Vs CC Visakhapatnam - 2017-TIOL-1169 (CESTAT - Hyd.), where the party filed Appeals against two OIO and the department also filed Appeal against the same two OIOs. The Division Bench followed the Board's Circular No. 4/2012 dated 17.12.2012 and the Supreme Court Judgments cited above dismissed the departments appeal. vi) All these cases have attained finality. 9.2 While finalizing the assessment of subject S/B, the assessing officers have overlooked the most important aspect of assessment, namely, determination of Fe content for the purpose of classification/rate of duty applicable. 9.3 It would not be out of place to mention here that the ld. Commissioner of Customs, Mangalore in Para 22 of his Order-In- Original No.02/2010 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .8 It means that, only after 1.5.2022 for determination of Tariff heading the Fe content shall be calculated on DMT basis. And prior to 1.5.2022, the calculation of Fe content shall be on WMT basis. 9.9 The Hon'ble High Court of Bombay at Goa in their Order in Writ Petition No. 216/2022 dated 23.09.2022 in the case of VM Salgaokar & others vrs Asst Commissioner of Customs(Export), Goa & others have very elaborately dealt with this issue. The relevant portions are at Para 14 as under :- "14. The petitioners have contended that the determination of Fe(iron) content on WMT basis was considered to be an acceptable norm in the prior assessments, which was clear from the fact that by virtue of the Finance Act 2022, for first time an amendment to the First Schedule to the Tariff Act, has been incorporated by adding a supplementary note in Chapter 26 to the effect that for the products of CTH 2601, the percentage of Fe (iron) content wherever specified, shall be calculated on the 'Dry Metric Ton' (DMT) basis to be effective from 01.05.2022. Hence, according to the petitioners there could not have been any adoption of the DMT method in respect of any assessment for the period prior to 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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