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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 ..... Fe content works out to be below 58%, and therefore, in the impugned order he held that export duty is not applicable on the goods exported by the Respondent. The department has not adduced any reason why the Board Circular should not be applied to determine the Fe content in this case. The adjudicating authority has correctly applied the Formula and determined the Fe content on WMT basis. Thus, there are no infirmity in the determination of Fe content by the adjudicating authority. Circular No. 04/2012-Cus dated 17.02.2012 was issued by the Central Board of Excise and Customs (as it was known then), wherein it was specifically provided that the net Fe content for the purpose of charging export duty is to be determined on Wet Metric Ton basis. Hon ble Supreme Court in UNION OF INDIA VERSUS GANGADHAR NARSINGDAS AGGARWAL [ 1995 (8) TMI 73 - SUPREME COURT] ,wherein the judgment of the Hon ble Bombay High Court in the case of UNION OF INDIA AND OTHERS VERSUS GANGADHAR NARSINGDAS AGRAWAL AND ANOTHER [ 1986 (4) TMI 71 - HIGH COURT OF BOMBAY] was upheld, where it was held that ' Merely because in respect of moist iron ore the iron content cannot be determined directly by physical ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21, 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 of the samples. As per their request, samples were re-drawn and sent to the Central Revenues Control Laboratory, New Delhi ( CRCL ), which vide test report dated 15.01.2021 certified that the iron content in the samples was 58.89% on Dry Metric Ton basis. 4. The Respondent, vide letter dated 08.02.2021, sought provisional release of the seized goods on payment of export duty under protest. Accordingly, the Deputy Commissioner of Customs, Paradeep Division vide letter dated 11.02.2021, granted provisional release of the goods, subject to payment of Customs duty. The Respondent deposited Rs. 7,82,98,618/- vide Challan dated 26.02.2021 towards Customs duty to accord release of the seized goods. 5. The contract between the Respondent and their buyer also provided for testing of the exported goods by China Inspection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Export Duty under Entry 20A of Notification No. 27/2011-Customs, as amended, under the Second Schedule to the Customs Tariff Act, 1975. The Fe content of the goods exported by the Respondent was below 58%, and thus, the question of payment of export duty on the same does not arise. The Respondent further submits that the in-house test certificate was independently verified and accepted by the Ld. DDM while issuing the Transit Form-L. Further, the accuracy of the Fe content declared by the Respondent is also corroborated by the test reports of an independent agency, being TCRC, by their pre-shipment quality certificates dated 23.12.2020 and 24.02.2021. Even the test conducted at the port of discharge supports the declaration made by the Respondent. In all these test reports, the Fe contents are reported at less than 58%. the Respondent submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the issue now stands gone in favour of the appellant. The impugned order is not sustainable and liable to be set aside which we hereby do . The appeal is allowed with consequential reliefs, if any. (emphasis supplied) 12. Further, reliance is placed on the decision of this Hon ble Tribunal in the case of Fomento Resources Pvt. Ltd. v. Commissioner of Customs, Vijayawada, 2019 (7) TMI 728 - CESTAT Hyderabad, wherein relying on the aforesaid Circular dated 17.02.2012, it was held the Chemical examiners report could be relied only if the Fe content was given on wet basis. Reliance is also placed on the decision of this Tribunal in the case of Obulapuram Mining Co. Pvt. Ltd. v. CC, Vishakhapatnam [2016 (12)TMI 641-CESTAT Hyderabad], wherein it was held as under: He submitted that for these reasons, the drawal of samples and its testing on dry basis and when not done by Wet Metr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etric 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 determined on WMT basis. 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, in the impugned order he held that export duty is not applicable on the goods exported by the Respondent. We find that the department has not adduced any reason why the Board Circular should not be applied to determine the Fe content in this case. The adjudicating authority has correctly applied the Formula and determined the Fe content on WMT basis. Thus, we find no infirmity in the determination of Fe content by the adjudicating authority. 17. Hon ble Supreme Court in Union of India v. Gangadhar Narsingdas Aggarwal [1997 (89) E.L.T. 19 (S.C.)],wherein the judgment of the Hon ble Bombay High Court in the case of Union of India Ors. v. Gan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect 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 is totally unwarranted by law. The submission of Mr. Rege must, therefore, fail. 18. Circular No. 04/2012-Cus dated 17.02.2012 was issued by the Central Board of Excise and Customs (as it was known then), wherein it was specifically provided that the net Fe content for the purpose of charging export duty is to be determined on Wet Metric Ton basis. The relevant paragraph of the Circular is reproduced for reference: 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 custom 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. 19. Thus, By following the decisions an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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