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TMI Blog2009 (1) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... M.V. Ravindran, Member (J) REPRESENTED BY : S/Shri G. Shivadas and G. Venkatesh, Advocates, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. - This appeal has been filed against the Order-in-Appeal No. 5/2007 (G) Cus dated 24-10-2007, passed by the Commissioner of Central Excise and Customs (Appeals), Guntur. 2. We heard both the sides in the matter. 3. The issue relates to the Export of Iron Ore through Krishnapatnam Port. This Port does not have berthing facility for vessels. Therefore the goods were normally carried to the vessel which was at the anchorage, by taking the goods through boat. When the goods are taken through the boat, in terms of the Customs Act, a boat note is issued which covers/the goods which are transported through boat to the ship. In the present case, the appellants filed two shipping bills for the export of Iron ore after complying with the procedures prescribed in terms of the Customs Act, 1962. The assessment was completed. In fact, the order under Section 51 of the Customs Act has been issued. Section 51 of the Customs Act stipulates that the proper officer on being satisfied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51; (b) in the case of any other goods, on the date of payment of duty. (2) The provisions of this section shall not apply to baggage and goods exported by post. We have to note that in terms of the above Section, in the case of goods entered for Export under Section 50, the relevant date will be the date on which the proper officer makes an order permitting clearance and loading of goods for exportation under Section 51. The goods are entered for export by filing the shipping bill under Section 50 of the Customs Act, 1962, which is reproduced herein below : "SECTION 50. Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form. (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents." Now let us go to the Section 51 of the Customs Act, which is reproduced herein below :- "SECTION 51. Clearance of goods for exportation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipping Bill No. 44 for export of 44000 MTs of Iron Ore fines 26-2-2007 Date of filing of Shipping Bill 26-2-2007 Date of assessment of shipping bill and date of payment of Export Cess 27-2-2007 at 23:00 hrs Date of arrival of vessel and issuance of Notice of readiness 27-2-2007 to 1-3-2007 27-2-2007 9-3-2007 Issuance of Boat Notes 1 to 13 It can be seen that in both the shipping bills, the dates of assessment are the date of shipping bills. There was no imposition of Export duty because they have been assessed even prior to the imposition of Export duty on 1-3-2007. After the assessment, even the loading has started as can be seen from the issue of boat notes. In the case of first shipping bill, the loading has started even on 18-2-2007. In the case of second shipping bill, the loading started even on 27-2-2007. However, the loading has not been completed as on 27-2-2007 and there was further loading of the goods to be done. At this point of time, the Export duty was imposed and the Department was insisting that the Export duty had to be discharged in respect of the goods which were yet to be loaded as on 1-3-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. [2008 (223) E.L.T. 3 (S.C.) = 2008 (84) RLT 853 (SC)] (ii) Easter Industries Ltd. v. CC [2009 (241) E.L.T. 158 (T) = 2008 (89) RLT 651] (iii) N.M. Nagpal (Pvt.) Ltd. v. CC [2008 (232) E.L.T. 316 (T) = 2008 (88) RLT 111] We find that the Commissioner's (Appeals) view that the boat note is the order for clearance and loading is incorrect. The boat note referred to in Section 35 of the Customs Act deals with the movements of goods which are waterborne and do not have any relevance to the assessment of the goods which are dealt with only under Sections 17, 50 and 51 of the Act. Section 35 of the Customs Act, 1962 prescribing boat note is a regulatory mechanism to ensure proper loading and unloading of the goods from and into a vessel. In terms of the proviso to Section 35, the goods can be waterborne even without being accompanied by boat note in certain circumstances. Therefore to say that the date of boat note is a relevant date for assessment or rate of duty is not at all correct. 6. The Customs procedure is like this. In case of export of the goods, the export manifest is filed prior to the departure of the vessel in terms of Section 41 of the Customs Act. The said m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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