2025 (10) TMI 1203 - AT - Customs

Exporter wins appeal; retrospective self-assessment rules not applied; late re-assessment and post-LEO duty increase unsustainable

CESTAT held in favour of the exporter and allowed the appeals, setting aside the impugned orders. The Tribunal found the post-April 2011 self-assessment ... Redetermination of value of export goods - Realisation of higher value than the value on which the exporter had paid export duty on the iron ore exported - invocation of extended period of limitation - tenability of demand of differential customs duty based on the change in rate of tax, vide Notification No.79/2008-cus. dated 13.06.2008 - period involved in the present disputes are prior to April 2011 - HELD THAT:- Given that Self-assessment was introduced in Section 17 of the Customs Act, 1962, with effect from April 8, 2011, through changes made in the Finance Act, 2011, it is elementary that the amended provisions cannot be pressed into action 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. There is nothing coming forth from the Act that indicates such retrospective application. In the absence of any such mandate discernible in the Act, it is unable to perceive the law to be operative retrospectively and it can but only operate prospectively, that is, from the date with effect from which it came into force. Under the old regime which was prevalent during the relevant period in this case, it was incumbent on the proper Officer to verify, examine and test as may be necessary, to require the exporter to produce such documents and/or information as was deemed fit, and thereafter, re-assess the duty leviable before the goods could be cleared for export - it is found from the comments of the Revenue that the Department has not controverted the appellant’s assertion of having placed the contract before the proper officer for examination and completion of assessment of the shipping bill and admittedly the subject shipping bills were finally assessed by the proper officer. Such being the conceded position, there are merits in the appellant’s contention that it was for the proper officer to arrive at the value on which export duty is applicable on presentation of the goods for exportation and when all the basic facts were disclosed to the proper officer, the question of disclosing inferential facts cannot be alleged. The admitted position in the instant case is that the Department too has failed to draw any samples or test the same in the condition in which it existed when presented for export. Therefore, the impossibility of restoring the situation at this belated stage to status quo ante in order to determine the correct percentage of FE content on the basis of wet metric ton basis, as was applicable for the relevant period and the consequent impossibility of determining the correct assessable value/transaction value in respect of these exports of the appellant, also necessarily weighs only in favour the appellant. The indolence of the Proper Officer in failing at the first instance to discharge the mandated responsibility of carrying out the requisite assessment to determine the correct duty leviable when the goods were presented for export, by drawing samples and subjecting them to the necessary tests and also in failing to seek the requisite clarifications and documents, and if need be, ordering the goods to be provisionally assessed, cannot be to the detriment of the appellant. In the instant case, Revenue cannot then invoke the extended period of limitation to demand differential duty or visit the appellant with financial and penal consequences. Thus, the redetermination of the value made and resultant demands of the differential duty invoking extended period of limitation along with interest, and consequential liability of the exported goods to confiscation and imposition of penalties in the instant case being wholly untenable, cannot sustain - the findings in this regard in the impugned order are liable to be set aside. The Hon’ble High Court has categorically held that the date on which actual loading of iron ore was started is totally irrelevant. We find that this Tribunal has taken similar views in its decisions in Commissioner v. Kashvi Power and Steel (P) Ltd. [2017 (7) TMI 672 - CESTAT KOLKATA] and Commissioner V. R.M.K.S. Mineral Exports (P) Ltd. [2024 (1) TMI 346 - CESTAT BANGALORE]. Thus, in the instant case since the Let Export Order was given on 09-06-2008, the demand of duty on account of change in rate of tax consequent to the N/N. 79/2008-cus. dated 13.06.2008, is incorrect and is liable to be set aside. The impugned orders are unsustainable and liable to be set aside - the appeals merit to be allowed in favour of the appellant. ISSUES PRESENTED AND CONSIDERED 1. Whether re-determination of export value and consequent demands of differential duty, interest, confiscation and penalties-invoked under extended limitation-are tenable where (a) shipping bills were finally assessed by the proper officer at the time of export and (b) the proper officer did not draw samples or carry out requisite tests at that time. 2. Whether the rate of export duty applicable to goods entered for export is determined by the date of the Let Export Order (order permitting clearance and loading under Section 51) or by the date when actual loading commenced, in circumstances where a change in duty rate occurred between those dates. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of re-determination of export value, extended limitation, and consequential financial/penal demands Legal framework: Section 17 (as in force during the relevant period prior to April 2011) governs assessment of export goods: examination/testing by the proper officer (s.17(1)); assessment after such examination/testing (s.17(2)); power to require production of contracts, invoices and other documents (s.17(3)); authority to provisionally assess and re-assess where statements/documents are found untrue (s.17(4)); and requirement to pass a speaking order within 15 days where assessment is contrary to the exporter's claim (s.17(5)). Self-assessment provisions introduced in 2011 are inapplicable to the earlier period. Precedent treatment: The Court relied on principles in Calcutta Discount Co. v. ITO concerning disclosure of primary versus inferential facts, and on the ITC precedent that challenges to finalized assessments must proceed by appeal. The Court also treated Gangadhar Agarwal jurisprudence (on Fe-content determination) and Board Circular No.4/2012 (clarifying WMT method) as relevant background for valuation practices. Interpretation and reasoning: Where, during the relevant period, the proper officer was obliged to examine, test and require documents and to draw samples if necessary, the failure by the proper officer to perform these mandated functions cannot later be remedied to the detriment of the exporter by invoking extended limitation to re-determine value and levy differential duties and penalties. The record showed that contracts and provisional invoices were produced with shipping bills and that shipping bills were finally assessed by the proper officer; the Department conceded no samples were drawn nor tests carried out at the time of export assessment. Given that assessments were completed under the then-prevailing regime, and no self-assessment regime applied, it was the proper officer's duty to have called for further material or re-assessed then; the revenue's belated redetermination therefore rests on procedural indolence of the proper officer and cannot be allowed to create penal consequences for the exporter. Ratio vs. Obiter: Ratio - where shipping bills were finally assessed by the proper officer and requisite examinations/tests were not carried out then, re-determination of value invoking extended limitation and consequent financial and penal consequences are untenable. Obiter - observations on industry practice and circulars clarifying Fe-content determination as background context. Conclusion: Redetermination of value, demands of differential duty invoking extended limitation, interest, confiscation of exported goods and penalties based on the Department's after-the-fact re-assessment are unsustainable and set aside where the proper officer failed to exercise the statutory assessment duties at the time of export and the shipping bills were finally assessed. Issue 2 - Relevant date for determination of applicable rate of export duty (Let Export Order date v. actual loading date) Legal framework: Section 16(1)(a) provides that the rate of duty and tariff valuation applicable to export goods entered under Section 50 shall be the rate in force on the date on which the proper officer makes an order permitting clearance and loading for export under Section 51. Sections 50 and 51 describe entry by shipping bill and clearance/Let Export Order by the proper officer after satisfaction on prohibition/assessment/payment. Precedent treatment: The Tribunal relied on authoritative High Court jurisprudence (Narayan Bandekar analysis) and subsequent Tribunal decisions holding that the Let Export Order date under Section 51 is the decisive date for rate determination; actual commencement of loading is irrelevant for determining the applicable duty rate. Interpretation and reasoning: The statutory language of Section 16(1)(a) ties the applicable rate to the date of the Section 51 order permitting clearance and loading. Practice and manual instructions treat the Let Export Order as tantamount to the order permitting clearance. Where the Let Export Order predates a notification effecting a change in duty rate, the later notification cannot be invoked to demand higher duty even if loading actually occurred after the notification; the operative date is the Let Export Order issuance. Ratio vs. Obiter: Ratio - the date of the Let Export Order under Section 51 is the relevant date for determination of the rate of duty for goods entered for export under Section 50; the date of actual loading is irrelevant. Obiter - contextual comparison with instances and procedural steps (e.g., shed appraiser, draft survey references). Conclusion: Demand of differential duty based on a notification that came into effect after the Let Export Order is not tenable; assessments/demands premised on the loading date rather than the Let Export Order date are to be set aside. Cross-references and final determination 1. Issues 1 and 2 are interrelated in that both turn on the legal effect of acts and omissions at the time of exportation: the proper officer's duty to assess (Issue 1) and the statutory fixation of the relevant date for rate determination (Issue 2). Where the proper officer completed assessment without requisite tests and the Let Export Order predates a change in duty rate, the Tribunal set aside both the redetermination demands and rate-change based differential demands. 2. The Court treated applicable precedents and Board circulars as binding or instructive authority where relevant; Gangadhar Agarwal principles and the Board circular supported the method of Fe-content determination applicable during the relevant period and informed the conclusion on impossibility of retrospective re-assessment.