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TMI Blog2023 (11) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Officer with regard to the quantity exported. According to the said invoice No. 355/2009 10 dated 14.01.2010, total quantity exported was only 25,924 WMT. It is found that there is no basis except assumption and presumption for drawing adverse inference on this account - further there is no evidence that the Appellant have received anything extra, higher than the invoice amount, which is supported by the BRC - the reasons given for rejecting the transition value, is against the provisions of Section 14 of the Customs Act read with Rule 8 of the Valuation rules. So far rejection of transaction value is concerned, it is held that for the excess lumps the same were to be charged at 10% ad-valorem, and not 15% ad-valorem. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 WMT. The said quantity is supported by the bill of lading also. Thereafter the said ship MV DONG JIN sailed from Haldia to Vishakhapatnam and at Vishakhapatnam - further quantity of 15,000 WMT was loaded which is supported by another bill of lading. Thus, the total quantity loaded in the said ship MV DONG JIN is 25,924 WMT (10924+15000). 3. After the export on the basis of the quantum of goods loaded in the said ship MV DONG JIN, covering 2 bills of lading, one for loading at Haldia and other at Vishakhapatnam, the Appellant raised a consolidated commercial invoice No. 355/09-10 for 25924 WMT for US$16,97,509. The Appellant received the remmitance for the exports in due course. As per bank realisation certificate dated 01.02.2010/23.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Calcutta are 15,000 WMT. Thus in all the total Iron Ore quantity exported under the 2 contracts under the 4 shipping bills appear to be 30,000 WMT. The BRC copy also mentions the 4 shipping bills wherein the total quantity appear to be 30,000 WMT. Whereas the commercial invoice was only for 25,924 WMT. Though the quantity is not mentioned in the BRC but the said quantity was co-related from the shipping bills, also dispatched from Haldia and Calcutta from the e-data of the department. Further the BRC shows the right amount in several parts, without indicating specifically the exact amount realised for export of goods against each of the 4 shipping bills. Thus it appeared that commercial invoice and BRC do not give specific indication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deductions arrived at 101.43 US$ and accordingly finalised the 2 shipping bills from the Vizag Port, and accordingly worked out differential duty payable ₹4,42,049/-. 7. As per the documents, it appeared that the consignment consists of lumps i.e Iron Ore Fines 10mm size and above, estimated at 5.74%, such lumps are chargeable to duty at 15%, and in consignment of Fines where lumps are mixed, tolerance of 5% only is permitted. And on any excess of this 5% of the quantity of lumps, duty at the rate of 15% is charged in terms of Public Notice No. 14/2008 dated 27.03.2008 issued by Goa Customs Commissionerate. Accordingly, after giving allowance for 5%, on balance 0.74% of the quantity, is dutiable at the rate of 15% ad-valorem. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bba Rao, Advocate as amicus curie. In this regard reliance is placed on the following case laws: i) Centrury Metal Recycling Pvt Ltd., Vs Union of India [2019 (367) E L T (S.C.)] ii) C.C.E. S.T., Noida Vs Sanjivani Non-Ferrous Trading Pvt Ltd., [2019 (365) E.L.T. 3 (S.C.)] 9. The Commissioner (Appeals) was pleased to reject the appeals upholding the finalisation order. 10. Being aggrieved the Appellant is before this Tribunal. 11. The Learned Amicus Curie, has taken us through the records, and have further urged that the impugned order is patently erroneous, as the quantity admittedly loaded on the ship is 25,924 WMT, which is not disputed. Shipping bill is filed provisionally as the cargo being Iron Ore Fine, is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legation of there being higher prices at the relevant time, is also supported by the metal bulletin referred to by the Adjudicating Authority. Further the Adjudicating Authority have given the allowable deductions from the prices quoted in the metal bulletin. Accordingly, he urges that the appeal is fit to be dismissed. 13. Having considered the rival contentions, we find that the transaction value have been rejected mainly on the basis of some confusion arising from the BRC, which referred to 4 shipping bills for the total quantity of 30,000 WMT. Accordingly, there was difference noted by the Customs Officer with regard to the quantity exported. According to the said invoice No. 355/2009 10 dated 14.01.2010, total quantity exported was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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