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TMI Blog2025 (3) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... fines is less than 58%, then the same is classifiable under Custom Tariff Item 2601 1142, which attracts "Nil" rate of export duty in terms of Notification No.15/2016-Cus dated March 1, 2016. 2.3 The Hon'ble Supreme Court in the case of UOI v. Gangadhar Narsingdas Aggarwal 1997 (89) ELT 19 (SC) had held that purpose of charging of export duty, the assessment of Iron ore for determination of Fe contents shall be made on Wet Metric Tonne (WMT) basis instead of Dry Metric Tonne (DMT) basis, which in other words mean that the percentage of iron ore contents have to be determined taking all the impurities including moisture into account because duty is relatable to weight. The said position was also clarified vide the Circular No. 4/2012- Cus dated 17.02.2012. Subsequently, the position has also been laid down by the Hon'ble Bombay High Court in VM Salgaoncar& Brothers Pvt. Ltd. &Anr. Vs. Assistant Commissioner of Customs (Export) [2023 (11) CENTAX - 215 (Bom), as well as Commissioner of Customs (Export) v. Vedanta Ltd. (2023) 9 Centax 268 (Cal.),which has affirmed the CESTAT Kolkata Final Order No. 75404 (KOL) of 2022. 2.4 However, while finalising the assessment vide the Order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the said decision of the Ld. Adjudicating Authority, the Appellant filed the appeal before the Commissioner (Appeals), Bhubaneswar. Vide the Order-in-Appeal No. 02/CUS/CCP/2025 dated 27.02.2025, the appeal was rejected on the following grounds: (i) The Shipping bills were passed on the basis of declarations made by the Appellant/ Exporter. Since there was no correction in the shipping bills, it can be told that the Proper officer has not assessed the shipping bills but accepted the declarations made by the Appellant/ Exporter.The Appellant has never asked Department for consideration of the methodology of determination of Fe content on WMT basis instead of DMT as stipulated by the Hon'ble Apex Court in Gangadhar Narsingdas Aggarwal. Also, the Appellant/Exporter/exporter had not paid export duty under protest. Further, the judgment of Gangadhar Narsingdas Aggarwal was inapplicable to the present case in as much as duty at that point of time was relatable to weight, i.e., specific rate of duty, whereas presently levy of export duty on iron ore is on Ad- valorem basis, and does not depend on moisture content. Thus, the Appellant has wrongly interpreted the Circular dated Feb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded. In such a situation using Section 154 to re-open earlier self- assessment may not be statutorily feasible, more so, when such an assessment is appealable against. If re-assessment of shipping bills is carried out under Section 154 of the Customs Act, 1962 without any limitation of time, the existence of the provisions of Section 128 and appeal mechanism therein would become redundant and if at all the amendment, even in the nature of re-assessment, are to be carried out under the provisions of Section 154, there is no requirement for the provisions of section 128 or other similar provisions. 2.7 Against the said order, the appellant is before us. 3. The ld.Counsel appearing on behalf of the appellant, submits that in their own case, this Tribunal has decided the issue vide impugned order No.75561/2025 dated 27.02.2025, but he further submits that at the time of argument of the said case, the appellant also relied on the decision of the Tribunal in the case of Vedanta Limited Vs. Commissioner of Customs (Export), Kolkata reported in (2023) 9 Centax 320 (Tri-Cal.), which has been affirmed by the Hon'ble Calcutta High Court as reported in (2023) 9 Centax 268 (Cal). Cognizanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g coal. It is an admitted fact that while assessments were made in respect of the appeals No. C/759/09 to 764/09 and C/767/09 the proper officer omitted to take note of the decision of the Hon'ble Apex Court in the case of TISCO (supra). Section 154 of the Customs Act, 1962 deals with the situation where there is a clerical or arithmetical mistakes in any decision or errors arising therein from any accidental slip or omission at the time of assessing the Bill of Entry and same can be corrected by the proper officer. In these appeals, the proper officer failed to take the cognizance of the decision in the case of TISCO (supra) while assessing the Bills of Entry which can be termed as accidental slip or omission. As per the law dictionary 'omission' means neglect or failure to perform what the law requires and in this case law requires to assess the Bill of Entry after taking note of the decision of TISCO which was omitted by the proper officer. If for such omissions or errors committed by the proper officer, the same is to be corrected while dealing with refund claims filed by appellant, the same will tantamount to be done under Section 154 of the Customs Act, 1962. That is why the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of Civil Procedure. All the four categories of errors enumerated by us above are mentioned in Section 152 CPC also." As in the case, the decision the Hon'ble Apex Court and the Circular dated 17.02.2012 was in public domain, in that circumstances, it is the duty of the adjudicating authority to take cognizance all the judicial pronouncements and the Circulars and thereafter, to pass the proper order, which the adjudicating authority has failed to do so in the case in hand while finalizing the Shipping Bills. 10. Therefore, we hold that it is an error arose from accidental omissions on the part of the assessing officer under Section 154 of the Customs Act, 1962 as held by this Tribunal in the case of M/s Sesa Goa Limited (supra). Consequently, finalization of the assessment done by the adjudicating authority for determining of the 'Fe' content on DMT instead of WMT basis, is bad in law. Therefore, the said omission is required to be rectified by the adjudicating authority and the consequential benefit is to be given to the appellant by rectifying the omission under Section 154 of the Customs Act, 1962 and thereafter, to determine the 'Fe' content on the basis of WMT basis an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction in relation to transactions prior to coming in force thereof unless the amending Act clearly provides the applicability of such amended provisions to operate retrospectively or by necessary implications. In absence of any such mandate in an amending Act, the law cannot be perceived to operate retrospectively but to operate prospectively i.e. from the date when it came into existence and/or was enforced. The law is always to be looked forward and not backward. There is no fetter on the part of the legislature to express any amendment of the law to operate retrospectively. Having not done so, it is always construed to operate prospectively unless the contrary intention is gathered by necessary implications. The sound reasons behind the aforesaid should be that the thing which is almost settled should not be allowed to be unsettled by a subsequent operation of law. We, thus, do not find any question of law, far less to speak of substantial question of law, involved in the instant appeal." The order of the Hon'ble Calcutta High Court has been accepted by the respondent and the refund claims were granted. 8. Therefore, we hold that it is an error arose from the accidental omissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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