TaxTMI 
TaxTMI 
2014 (4) TMI 658
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....udes the export duty, hence, ought to be excluded in arriving at the assessable value, under Section 14 of the Customs Act, 1962 for determination of export duty. The Department, on the other hand, referring to a Board's Circular No.18/2008-Cus. dated 10.11.2008 and applying the provisions of Section 14 of Customs Act,1962, rejected the contention of the Applicant to treat the FOB price as cum-duty price for the purpose of determination of export duty under Section 14 of the Customs Act, 1962 and the shipping bills were assessed by the Revenue, accordingly, considering it as transaction value. Aggrieved by the said assessment Orders, the Appellant had preferred appeals before the ld. Commissioner (Appeals) who had confirmed the assessment orders passed by the adjudicating authority and rejected the Appeals. Hence, the present Appeals. 3. The Ld. Advocate for the Appellant submits that the Appellant had not received any amount, in addition to the FOB price, towards the export duty discharged by them. Hence, the export duty that had not been recovered from the customers separately, in addition to the FOB price, and it being a part of the total realization i.e. FOB price, the same ....
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....levies on export of iron ore in the country of origin shall be for account of seller and all levies on import in the country of destination shall be for buyer's account. This provision of the contract further says that, if, during the tenure of this contract, the country of origin imposes any levy on export of ore higher than what existed on the date of commencement of the contract, or if the rate of levy is substantially increased, the unshipped balance under the contract may be cancelled by the seller or the buyer upon receipt of notice of such event. Another provision of this contract made it obligatory for the buyer to pay the FOB price as agreed between them and the seller. These provisions of the contract would appear to show that these appellants received the FOB price of the goods from the overseas buyers and further that the seller and the buyer would be liable to pay all the levies by the governments of their respective countries. In other words, the contract did not permit the incidence of such levy (e.g. export duty) in any of the countries to pass on to the other country. This aspect of the contract, in our view, is in keeping with the legal principle embodied in Secti....
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....y word there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding the particular case. This principle is too well settled and reference to few decisions of this Court would suffice. [See : Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, Palghat and Anr. (AIR 1990 SC 1747), Union of India and Anr. v. Deoki Nandan Aggarwal (AIR 1992 SC 96), Institute of Chartered Accountants of India v. Price Waterhouse and Anr. [1997 (6) SCC 312] and Harbhajan Singh v. Press Council of India and Ors. (JT 2002 (3) SC 21)]. [emphasis supplied] In the case of Tara Agencies (supra), the Apex Court held that : 'The intention of the legislature has to be gathered from the language used in the statute which means that the attention should be paid to what has been said as also to what has not been said.' In the case of Plantation Corporation of Kerala (supra), the Apex Court reiterated the above rulings and held that, if the intendment was not in the words used it was nowhere else and so long as there was no ambiguity in the statutory language, resort to any interpretative process to unfold t....
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....has emphatically submitted that, if such abatement is not allowed, duty will have to be paid on an amount of duty comprised in the FOB value. In this context, he has argued that duty is not 'goods' and hence not exigible to duty. We are unable to accept this proposition of the counsel inasmuch as, in the case of export of goods, what is assessed to duty is goods and its value only provides a quantitative basis for the duty to be paid by the exporter. According to the learned counsel, the FOB price is cum-duty price and the duty element cannot be charged to export duty. We have not accepted the FOB price to be a cum-duty price. In this case, we have come across a contract dated 1-4-2005 which provided for export of iron ore by the appellant to overseas buyer at the FOB price agreed between the parties. This contract was meant to be in operation from year to year. To say that the FOB price agreed between the parties is cum-duty price would mean that the contracting parties were aware of the rate of export duty for the goods exported in a given calendar year, at the very commencement of the year. If the rate of export duty changes midway in the particular year, how could the contracti....
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....as he had to, that even on the decisions relied upon by him, the fact that owing to the operation economic forces it was not possible for the taxpayer to pass on the burden of the tax, did not alter the nature of the imposition and detract from its being a 'duty of excise'. For instance, the state of the market might be such that the duty imposed upon and collected from the producer or manufacturer might not be capable of being passed on to buyers from him. Learned Counsel urged that this would not matter, as one had to have regard to 'the general tendency of the tax' and 'the expectation of the taxing authority' and to the possibility of its being passed on and not to the facts of any particular case which impeded the operation of natural economic forces. 21. The impediment to the duty being passed on might be due not merely to private bargains between the parties or abnormal economic situations such as the market for a commodity being a buyers market. Such impediments may be brought about by the operation of other laws which Parliament might enact, such for instance, as control over prices. If in such a situation were the price which the producer might charge his buyer is fixe....
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....that sales-tax is an indirect tax on the consumer. The idea is that the seller will pass it on to his purchaser and collect it from them. If that is the nature of the sales-tax then, urges the learned Attorney-General, it cannot be imposed retrospectively after the sale transaction has been concluded by the passing of title from the seller to the buyer, for it cannot, at that stage, be passed on to the purchaser. Once that time goes past, the seller loses the chance of realising it from the purchaser and if it cannot be realised from the purchaser, it cannot be called sales-tax. In our judgment this argument is not sound. From the point of view of the economist and as an economic theory, sales-tax may be an indirect tax on the consumers, but legally it need not be so. This also makes it clear that the sales-tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. If that be the true view of sales-tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make the law prospectively as well as retrospectively.....