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TMI Blog2023 (10) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... 0%, the Contract price was required to the adjusted in the light of clause-5 of the Contract. Accordingly, Addendum No. 3 dated 31.5.2011was signed on mutual agreement. The method adopted by the Commissioner (Appeals) is not proper. In the original contract dated 13.04.2011, there was a provision for reducing the price when the Fe content is less than 61%. However, this contract in total will be rejected when the Fe content is less than 60%. In this case as per the Certificate issued by Intertek, the Fe content was 59.11%. Accordingly, the original contract dated 13.04.2011, was liable to be rejected and the terms of arriving at the revised price as per the original contract no longer exists. In view of the Report from Intertek, the agreement was reworked and Addendum 3 dated 31.05.2011 was mutually accepted. As per this Addendum, the revised price agreed was USD 125, wherein the contract will be rejected if the Fe content is less than 58%. If the buyer and seller are not related and if the price is the sole consideration, the transaction value at the time and place of export will be the assessable value. Thus, the contention of the Appellant is agreed upon that the assessab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e.f. 8.4.2011, the shipping bill has not been reassessed by the exporter though value quantity has been changed. (v) The refund claim was directly filed after three months which was not proper. 3. On appeal, the Commissioner (Appeals) the Commissioner (Appeals) partly allowed the refund and partly rejected the refund. 4. Aggrieved against the rejection of refund of Rs.66,43,390/-, the Appellant filed appeal before this Tribunal. The Department also filed appeal against the sanctioning of refund of Rs.6,76,254/-. As both the decisions emanate from the common Order-in-Appeal, both are taken up together for decision. 4. In their grounds of appeal, the Appellant made the following submissions: (i) Valuation of export goods attracting ad valorem rate of export duty is to be done in accordance with the provisions of Section 14 of the Customs Act, 1962 read with the Customs Valuation (determination of value of Export Goods) Rules, 2007. Section 14(1) states that where the export goods are sold by the exporter for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and intimated the same to the exporter s Banker, namely, Bank of Baroda, Mumbai on 01.06.2011 and Commercial invoice No. OCI/ZHGCL/001/11-12 dated 01.06.2011 (Annexure-10) for USD 39,75,200.30 was issued to the Buyer for 33673 WMT/31763.740 DMT of Iron ore fines. BRC certified that USD 39,75,200.30 equivalent to Rs.17,80,79,565/- has been received. (vii) In the subject Shipping Bill, the assessment was made provisional subject to test result of the sample. Out of 34000 WMT declared in the subject Shipping Bill, 327 WMT of such goods could not be loaded into the vessel. (viii) Pursuant to the condition under Clause 9 of the Contract, Intertek India Pvt. Ltd., the authorized surveyor submitted the Certificate of weight and Certificate of Quality vide its letter dated 23.05.2011. According to the said certificate, the chemical composition, moisture and physical specification was as under:- a) Chemical composition (on dry basis) Fe 59.11 PCT SIO2 4.55 PCT AI203 5,57 PCT P 0.055 PCT S 0.013 PCT Moisture 5.67 PCT b) Physical specification (on Natural Basis) Above 10 mm 2.47 PCT Below 10 mm 97.53 PCT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory right of filing an appeal it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a refund claim on the ground that the adjudicating authority has committed an error in passing his order. (iv). In view of the above, Shipping Bill filed by the exporter pursuant to the introduction of self-assessment provision in the Customs Act w.e.f. 8.4.2011, which has neither been reassessed nor the assessment challenged by the exporter has attained its finality. 6. Heard both sides and perused the appeal documents. 7. We observe that the Appellant has executed a contract dated 14.04.2011, as per which the agreed price of Iron Ore was US$ 153 per DMT. The Appellant have paid export duty amounting to Rs.4,22,58,967/-on the basis of this agreed price. As per Clause 9 of the Contract, Intertek India Pvt. Ltd., the authorized surveyor submitted the Certificate of weight and Certificate of Quality vide its letter dated 23.05.2011. As per this certificate, the Fe content was 59.11%. As per the agreement, if the Fe content is less than 60%, then the contract is liable to be rejected. Since the chemical compositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worked out as under:- Table Sl. No. Description Unit Quantity/Value 1. Quantity dispatched (Fe 59.11% basis and moisture 5.67% WMT 34000.00 2. Quantity short shipped as per short shipment notice dated 19.5.2011 WMT 327.000 3. Quantity dispatched (Sl No. 1- Sl. No. 2) WMT 33673.000 4. Less; moisture 5.67% 1909.259 5. Quantity actually dispatched DMT 31763.740 6. Basic Rate /DMT (Fe 59.11%) is reduced from basic rate USD 153/DMT(Fe 61%) USD 148.260 7. Basic price @148.260X31763.740 USD 4,709,292.092 8. Rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration for the sale, the value of the export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods, is relevant for determination of export duty payable thereon. Thus, if the buyer and seller are not related and if the price is the sole consideration, the transaction value at the time and place of export will be the assessable value. Thus, we agree with the contention of the Appellant that the assessable value of the goods exported with 59.11% Fe content would be USD125. Accordingly, we hold that the Appellant was liable to pay export duty on the basis of assessable value of USD 125 Per MT. Since the Appellant has already paid export duty by adopting USD 153 per MT, we hold that they are eligible for refund of the excess duty paid. Since the Appellant are eligible for the excess customs duty, the department's appeal challenging the partly allowed refund is not sustainable. Accordingly, the department's appeal is liable to be rejected. 11. In view of the above discussion, we allow the appeal filed by the Appellant and reject the department's appeal. ( Dictated and pronounced in the open Court ) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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