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TMI Blog2024 (7) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.02.2012, wherein it was directed to complete all pending assessments considering Fe content on Wet Metric Ton (WMT) basis. We also observe that Notification No.62/2007-Customs dated 03.05.2007 was issued, wherein it has been notified that Fe content below 62% will attract customs duty at the rate of Rs. 50 PMT. The issue is no more res integra in the view of the decisions of the Tribunal, Kolkata in the case of M/S BAGADIYA BROTHERS PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS (PORT) , KOLKATA AND COMMISSIONER OF CUSTOMS (PREVENTIVE) , BHUBANESWAR [ 2023 (9) TMI 827 - CESTAT KOLKATA] pronounced on 15 September 2023 wherein on a similar issue, this Tribunal has held that 'Fe' content is to be determined on WMT basis and duty has to be charged on such basis. A perusal of the Certificate indicates that the percentage of 'Fe' content in the iron ore exported is 58.61%, which is less than 62%. As per Notification No.62/2007-Customs dated 03.05.2007, when the Fe content is below 62%, the customs duty payable on the iron ore exported is at the rate of Rs. 50/- per MT. Accordingly, the appellant is liable to pay customs duty @ Rs.50/- per MT for the iron ore exported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alysis report showed Fe content as 63.22% on DMT basis. Accordingly, the appellant was of the view that the duty should have been charged on the basis of Fe content in the Iron ore in the form it was received/ exported i.e. on WMT basis. However, the Ld. Deputy Commissioner has finalised the Shipping bills vide Order-in-Original bearing No VIII-CUS-51(1677)/EXP/PDP/2007/807 dated 10.02.2017 charging custom duty at Rs. 300 MT on the net quantity considering the Fe content as 63.22% on DMT basis as per the load port analysis report. 2.3. The Appellant preferred appeal before the Ld. Commissioner (Appeals) praying that they are entitled for refund of excess custom duty paid considering that the Fe content on DMT basis was below 62% and accordingly custom duty should be calculated at the rate of Rs. 50/- PMT instead of Rs. 300/- PMT. The Ld. Commissioner (Appeals), Bhubaneswar vide impugned order dated 28.12.2017, rejected the appeals, on the ground of non-availability of CRCL test report and certificates of authorized inspection agency showing Fe content on WMT basis. Aggrieved against the impugned order, the appellant has filed this appeal. 3. The appellant submits that the issue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 63.22% as per the load port analysis report. Accordingly, he submits that export duty was correctly charged @ Rs. 300/- per MT. 5. Heard both sides and perused the appeal records. 6. We observe that the appellant got a contract dated 01.10.2007 to export 15,000 MT of Iron Ore fines to China. Accordingly, they filed two shipping bills for the export of 15,000 MT of iron ore. The load port analysis report showed the Fe content as 63.22% on DMT basis. Accordingly, both the shipping bills dated 26.11.2007 filed by the appellant for export of 15,000 MT of iron ore were assessed provisionally and the appellant paid export duty at the rate of Rs. 300/- per MT along with applicable cess as per the Customs Tariff Act. 6.1. We observe that after the decision of the Hon ble Supreme Court in the case of Union of India v. Gangadhar Narsingdas Aggarwal [1997 (89) E.L.T. 19 (SC)], the Board issued Customs Circular No. 04/2012-Cus dated 17.02.2012, wherein it was directed to complete all pending assessments considering Fe content on Wet Metric Ton (WMT) basis. We also observe that Notification No.62/2007-Customs dated 03.05.2007 was issued, wherein it has been notified that Fe content below 62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of Net Quantity and there appears to be no further requirement on this aspect for re-calculation of duty. Accordingly, the Shipping Bill No.777/IOF/08-09 778/1OF/08-09 both dt:26.11.2007 are re-assessed/ finalised as below: CALCULATION SHEET S/Bill No. Date: 777/IOF/07-08 778/IOF/07-08 both dt: 26.11.2007 Name of Vessel MV. ISLAND SINGAPURA , ROT NO-EXP/547/2007, DATE: 26.11.2007 Commodity Iron Ore Fines Tariff Classification 26011140 Exporter M/s. NARBHERAM VISHRAM Bill of Lading No. Date: 03, Dt: 04.12.2007 Invoice No. Date: KNR/VISA/07/0708-INV01 DT:10.12.2007 Provisional Short shipmen of 305 MT Final S/B No. 777/IOF/07-08 778/IOF/07-08 777/IOF/07-08 778/IOF/07-08 Quantity 16000 3000 WMT 16000 2695 WMT Fe Content 63.5 61 % 63.22 61.64 % Moisture 9 9 % 7.28 7.50 % Moisture quantity 1440.00 270.00 MT 1164.80 202.13 MT Net Quantity 14560.00 2730.00 DMT 14835.20 2492.88 DMT Export Duty @300/- PMT 4800000 150000 INR 4800000 134750 INR Cess @Rs.1.03 PMT 16480 3090 INR 16480 3090 INR Total Duty 4816480 153090 INR 4816480 137840 INR Customs duty excess Paid/refundable (for both S/Bs) 15,250/- INR The Shipping Bills are accordingly re-assessed/finalized. (VISHNU KUMAR) Deputy Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain all types of impurities Moisture, Sulphur, Phosphorus, Aluminium trioxide etc. The percentage of impurities is substantial. If the percentage of Fe is taken after deducting all quantity of impurities, percentage of Fe will be lower. Therefore, the rate of duty will be lower. The Supreme Court directed that the percentage of Fe will be taken out of total material presented for export after deducting all the impurities including moisture. 1. This has been followed in the following judicial pronouncements : i) SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD.- 1987 (30) E.L.T. 686 (Goa High Court) [Para7] where similar view was taken as under : The iron contents in the moist iron ore which was exported ought to have been calculated following the well-recognised international practice and the duty calculated on basis of the said iron contents in the moist ore exported. By ignoring the moisture contents in the exported ore, the Customs Authorities arrived at a manifestly erroneous conclusion that cannot be sustained, as they were bound to consider; all the relevant circumstances . ii) In the case of Mineral Enterprises Ltd. Vs CC Mangalore 2010 (253) ELT 241 (Tri. Bang.), the Tribunal has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cochin this office had earlier written to the Central Revenue Control Lab, New Delhi who has opined vide his letter dated 22.01.2009 that the iron content in samples in received basis can be calculated from iron content on dry basis if the moisture content in the samples as received basis is known: Iron content = Fe x (100-M) / 100 (on as received basis) Where Fe is % age of iron content on dry basis, M is moisture content in the sample. This method although not the best, was temporarily adopted by the department in previous orders on similar matters so as to meet the requirements of various judicial pronouncements. [we are attaching the order] 9.4 This method of determining Fe content in WMT is elaborately by discussed by Hon ble High Court of Bombay in Para 47 of its judgement in WP No. 216/2022 in case of V M Salgaokar Brothers. The Court mentions that it is universally recognised and followed for determination of Iron content in natural iron fines. 9.5 If the above formula is applied, in both the above cases under appeal, the Fe content of Iron Ore Fines exported on WMT basis would be more than 55% but less than 58% and hence would fall under CTSH 2601 11 42 as per the Tariff s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down by the Supreme Court in Union of India vs. Gangadhar Narsingdas Aggarwal (supra), as clarified by the communication dated 17 February 2012, of the Tariff unit of the Ministry of Finance Department of Revenue (CBEC) Customs-IV Division. II. The GA Circular No. 2/2019 dated 12/15 April 2019, being not issued under Section 151-A of the Customs Act, same cannot form the basis of any assessment. III. In view of our above conclusion, we set aside the impugned orders-in-original dated 17 March 2022 and 13 March 2022 passed by the Assistant Commissioner of Customs. IV. We order a remand of the matter in both the cases to the Assistant Commissioner of Customs, who shall hear the petitioners and pass a fresh order in accordance with law, in the light of the principles of laws as discussed by us in this judgement. Such exercise shall be undertaken within a period of three months from today. 64. Rules is made absolute in the above terms, No costs . Signed BHARAT P. DESHPANDE, J. G.S. KULKARANI, J. 9.10 The Assessing Officer for the impugned Shipping Bills have adopted the Test Report of Griffith India Pvt. Ltd. as it provides details of all types of impurities including moisture, even t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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