9911796707
TMI Blog2024 (7) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 300/- PMT along with applicable cess as per the Customs Tariff Act, considering the "Fe" content of 63.22% on Dry Metric Ton (DMT) basis as per the load port analysis report and that the contractual agreement was also on DMT basis. 2.1 Thereafter, the appellant filed all the relevant documents before the Deputy Commissioner, Customs Division, Paradeep for finalisation of the shipping bills on the baisis of 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 appellant also cited Customs Circular No. 04/2012-Cus dated 17.02.2012, wherein it was directed to complete all pending assessment considering "Fe" content on Wet Metric Ton (WMT) basis. The appellant also referred to Notification No.62/2007-Customs dated 03.05.2007 wherein it has been notified that "Fe" content below 62% will attract customs duty at the rate of Rs. 50/- PMT. 2.2. In the impugned case, the load port analysis 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-Cus dated 17.02.2012, wherein it was specifically provided that the net "Fe" content for the purpose of charging export duty is to be determined on WMT basis. 3.4. It is their submission that the method of determining Fe content on WMT basis is discussed by Hon'ble High Court of Bombay in the case of V.M. Salgaocar and Brother Pvt. Ltd v. The Assistant Commissioner of Customs (Export) [2022 (9) TMI 1306]. The Court mentioned that it is universally recognised and followed for determination of Iron content in natural iron ore fines. The appellant contends that the said methodology has also been accepted by the CESTAT, Kolkata and followed in the case of M/s. Bagadiya Brothers Private Limited (supra). 3.5. Accordingly, the appellant prayed for setting aside the impugned order and to allow their appeal. 4. The Ld. Authorized Representative appearing for the Revenue submits that in this case, the contractual agreement was on DMT basis and the "Fe" content on Dry Metric Ton (DMT) basis 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issa, Cuttack in W.P(C) No.23278 of 2015 filed by M/s Narbheram Vishram and further submission of final commercial invoice, discharge port analysis report (basis for final Invoice), Bank realization certificate towards consideration received by the exporter, Shipping Bill No-777/IOF/2007-08 dr:26.11.2007 & 778/1OF/2007-08 dt:26.11.2007 filed by M/s. Narbheram Vishram, through their CHA, M/s. B.G.Somadder & Sons Pvt. Ltd. Paradeep, for export of Iron ore fines are hereby assessed finally under Section 18(2) of the Customs Act, 1962 (details of which are given in the table below). During the Personal Hearing, held on 25.10.2016 in the matter, M/s. Narbheram Vishram has also contended and requested that their Shipping Bills may kindly be re-assessed/ finalised as per the order of Hon'ble Supreme Court in Union of India Vs Gangadhar Narsingdas Aggrwal and CBEC Circular No.4/2012- Cus dt:17.02.2012. In this regard, it is seen from the records that the Customs Duties appears to have been calculated correctly on the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' content is to be determined on WMT basis and duty has to be charged on such basis. The relevant paragraphs of the said decision are reproduced below: - "8. We find that the issue under dispute in these cases is whether for deciding the classification and rate of duty payable, the Fe %age of Iron Ore Fines is to be determined on Dry Metric Ton (DMT) basis or Wet Metric Ton (WMT) basis. 9. The issue stands decided as early as 1997 by Hon'ble Supreme Court in the case of Union of India Vs Gangadhar Narsingdas Aggarwal - 1997 (89) ELT 19(S.C.) and subsequent CBEC Circular No. 4/2012-Cus dated 17.12.2012 which was issued for adoption of uniform Customs procedure in all Customs Houses. In the said Circular, it was stipulated that for the purpose of charging of export duty the assessment of Iron ore, determination of Fe contents is required to be made on Wet Metric Ton (WMT) basis which in other words mean deducting the weight of all impurities (inclusive of moisture) out of the total weight/Gross Weight to arrive at Net Fe contents. 9.1 The rate of duty was being fixed, then and also now, on the basis of percentage of iron(Fe) in the ore. The higher is the percentage, more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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"[.emphasis added] (No Appeal) v) This issue was also discussed and decided by the Tribunal in the case of Oblapuram Mining Company Pvt. Ltd. Vs CC Visakhapatnam - 2017-TIOL-1169 (CESTAT - Hyd.), where the party filed Appeals against two OIO and the department also filed Appeal against the same two OIOs. The Division Bench followed the Board's Circular No. 4/2012 dated 17.12.2012 and the Supreme Court Judgments cited above dismissed the departments appeal. vi) All these cases have attained finality. 9.2 While finalizing the assessment of subject S/B, the assessing officers have overlooked the most important aspect of assessment, namely, determination of Fe content for the purpose of classification/rate of duty applicable. 9.3 It would not be out of place to mention here that the ld. Commissioner of Customs, Mangalore in Para 22 of his Order-In- Original No.02/2010 under C. No. VIII/10/22/2009/Adjn dated 28.3.2010, has recorded as follows : "22. To resolve the issue relating to the moistur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd prior to 1.5.2022, the calculation of Fe content shall be on WMT basis. 9.9 The Hon'ble High Court of Bombay at Goa in their Order in Writ Petition No. 216/2022 dated 23.09.2022 in the case of VM Salgaokar & others vrs Asst Commissioner of Customs(Export), Goa & others have very elaborately dealt with this issue. The relevant portions are at Para 14 as under :- "14. The petitioners have contended that the determination of Fe(iron) content on WMT basis was considered to be an acceptable norm in the prior assessments, which was clear from the fact that by virtue of the Finance Act 2022, for first time an amendment to the First Schedule to the Tariff Act, has been incorporated by adding a supplementary note in Chapter 26 to the effect that for the products of CTH 2601, the percentage of Fe (iron) content wherever specified, shall be calculated on the 'Dry Metric Ton' (DMT) basis to be effective from 01.05.2022. Hence, according to the petitioners there could not have been any adoption of the DMT method in respect of any assessment for the period prior to 1 st May 2022. 63. In the light of the above discussion, Court ordered the petition is partly allowed in terms of the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection agency, Visiontek Consultancy Services Pvt. Ltd, certifying that the iron ore content on WMT basis is 58.61%. For the sake of ready reference, the scanned copy of the said Certificate is reproduced below: 6.5.1. A perusal of the Certificate reproduced above 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, we hold that the appellant is liable to pay customs duty @ Rs.50/- per MT for the iron ore exported vide the above said two shipping bills. As the appellant has already paid customs duty @ Rs.300/- per MT, the appellant is eligible for refund of excess customs duty paid at the time of export. 7. In view of the above discussion, we set aside the impugned order as well as the Finalisation order dated 10.02.2017 and remand the matter back to the adjudicating authority to finalise the provisional assessment on the basis of the above directions. Upon finalisation, the appellant is eligible for the refund of the excess duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
