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TMI Blog2024 (6) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... ency. Accordingly, the said IOF was tested at the Therapeutics Chemical and Research Corporation ('TCRC'), which vide test report dated 23.12.2020, certified that the iron content in the said IOF was 56.87%. In terms of the Foreign Trade Policy, read with the Second Schedule to the Customs Tariff Act, 1975, iron ore of Fe content up to 58% is allowed to be exported duty free, while 30% export duty is chargeable on exports of iron ore of Fe content between 58% to 64%; and export of iron ore of Fe content above 64% is prohibited. 3. The Preventive Officer of Customs, Paradeep Division, drew samples from the 34,500 MT of IOF intended for export, and sent such samples to CSIR-Institute of Minerals and Materials Technology ('IMMT') for testing. IMMT, vide test report bearing Lab Ref. No. LT02 D/20/57 dated 01.01.2021, certified that the iron content in the samples drawn was 66.05%. In view of the findings in the IMMT report, the iron ore fines sought to be exported by the Respondent were seized under Section 110 of the Customs Act, 1962 ('the Act') on 02.01.2021. As the samples drawn earlier were not as per the sampling process of bulk terminal, the Respondent requested for retesting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be relied upon for levy of export duty. iii. On applying the standard industry formula for determining Fe content on Wet Metric Ton ('WMT') basis, after considering Fe Content on Dry Metric Ton ('DMT') basis and Moisture content determined by CRCL, the Fe content works out to be below 58%, and therefore, export duty is not applicable on imported goods. 8. Aggrieved by the said Order-in-Original, the Revenue preferred the present appeal before this Tribunal on the following grounds: (i) The adjudicating authority has not discussed about the Test Report received from CSIR-IIMT (ii) The CSIR report is explicit and detailed the moisture content of 4.72% and Fe content and 58.89% which ratifies the 66.05% given by CRCL, Bhubaneswar. (iii) Adjudicating authority has relied on the Circular 04/2012 to drop the proceedings. But, he has ignored the Para 4 of the Circular 04/2012. (iv) The formula adopted by the adjudicating authority is erroneous. (v) Accordingly, they prayed for setting aside the impugned order, dropping the proceedings. 9. The Respondent submits that IOF with Fe content above 55% but below 58%, are classifiable under RITC 26011142 and are exempt from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was held as under: "3. The Board vide Circular No. 4/2012-Cus., dated 17-2- 2012, in the wake of several references received, inter alia, clarified as under :- 3. In light of the observation by the Apex Court that export duty is chargeable according to Fe contents, and to maintain uniformity all over the customs houses, it is clarified that 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. 4. In case of any difficulty in arriving at the net Fe content, assessment may be based on test result which directly determines the Fe contents. 5. Pending assessments on the issue, if any, should be finalized accordingly." For these reasons, the drawal of samples and its testing on dry basis and when not done by Wet Metric Ton basis cannot be taken as the correct percentage for the purpose of FTP. 4. Learned AR fairly conceded the fact of Board's Circular discussed above. 5. In the light of the Board's Circular referred to above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 56.14%- 56.56% 2. Pre-shipment quality test done at TCRC on 23.12.2020 56.87% 3. Pre-shipment quality test done at TCRC on 24.02.2021 56.72% 4. Report of Discharge Port dated 24.03.2021 56.70% 16. All other reports indicate that the Fe content was less than 58%.Thus, we observe that the main issue to be decided is whether the Fe content is to be determined on Wet Metric Ton basis or Dry Metric Ton basis. Revenue's case is entirely based on the CRCL report dated 15.01.2021, wherein Fe content was found to be 58.89% on Dry Metric Ton basis, i.e. after removing the moisture and not on "as is"/ "Wet Metric ton" basis. We find that the adjudicating authority has given a clear finding on this issue. He has relied upon the Board Circular No. 04/2012-Cus dated 17th February, 2012 states that for the purposes of charging export duty, the Fe (Iron) content in the Iron Ore Fines has to be determined on Wet Metric Ton basis and not Dry Metric Ton basis. Fe content on Dry Metric Ton basis certified by CRCL Report cannot be relied upon for levy of export duty. We agree with the submission of the Respondent. The Board Circular clearly specifies that the Fe content is to be determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the iron ore exported by the petitioners. In our view, the submission has no merit whatever. Although it is true, as submitted by Mr. Rege, that moist lumpy iron ore and moist iron ore fines have to be dried for the purpose of determining the iron contents, there is a mathematical formula by which, on the basis of the results of these aforementioned analysis, the iron content in moist lumpy iron ore and moist iron ore fines can be easily determined. That formula has been in fact explained in a Letter dated 23rd June, 1978 addressed by Toman Trading Co. Ltd., a copy of which is at Exh. A to the petition. It appears that following this very method, Italab (Goa) Pvt. Ltd. have Issued certificates as to the iron content in the moist iron ore fines and moist lumpy iron ores exported by the petitioners, and these certificates show that the iron content in these iron ores was to the extent of about 57 percent. Merely because in respect of moist iron ore the iron content cannot be determined directly by physical analysis this cannot lead to the result that the iron ore content cannot be determined at all or that the petitioners should be deprived of their just claim on that footing which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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