TaxTMI 
TaxTMI 
TaxTMI 
2014 (6) TMI 896
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....y accept the DMT weight of 15165 metric tons or for the purpose of levy of Export Duty in terms of Customs notification. The Department took the WMT weight of 16850 mts for the purpose of calculation of duty arbitrarily at the back of the exporter without assigning any reasons and without giving any opportunity to the exporter for explaining the matter. On account of this wrong calculation, which is in complete violation of the exemption notification No. 27/2011-Cus., dated 1-3-2011 we were forced to pay extra duty amounting to Rs. 27,56,146 (Rs. 26,22,559 for S/B. No. 013125, dated 22-6-2011, Rs. 1,33,587 for S/B. No. 013126, dated 22-6-2011." On the aforesaid basis, the writ petitioner prayed for the following reliefs : "In view of the above we humbly pray to your goodself to consider our case and allow the post-amendment of the Shipping Bill for the purpose of regularization of the export documents as we have already finalized our export transaction with our bank. We also request your goodself to issue a speaking order of assessment immediately in terms of Section 17(5) of Customs Act, 1962 or to amend the Shipping Bill in terms of Section 154 of Customs Act, 1962 and sanction....
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....following guidelines with respect to assessment of duty in respect of iron ores : "2. Hon'ble Supreme Court in the matter of Civil Appeal No. 7539 of 1995 in case of Union of India v. Gangadhar Narsingdas Aggarwal [1997 (89) E.L.T. 19 (S.C.)] in order to arrive at the Iron (Fe) contents out of Iron Ore, had held that - 'that is because the duty is relatable to weight and, therefore, once the iron content is determined keeping in mind the total weight, the percentage can be determined separating the iron contents from the rest of the impurities inclusive of moisture and thereafter ascertain in which category the lumpy iron would fall for the purpose of charging duty ....' 3. In light of the observation by the Apex Court that Export Duty is chargeable according to Fe contents, and to maintain uniformity all over the Custom houses, it is clarified that for the purpose of charging of Export Duty the assessment of Iron Ore for determination of Fe contents shall be 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 t....
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....rities below should be set aside and the Assistant Commissioner of Customs should be asked to pass specific order on the basis of complaint lodged by the appellant in terms of sub-section (5) of Section 17 of the Act within one month from the date of communication of this order giving an opportunity of hearing to the appellant. If the Assessing Officer finds substance in the protest lodged by the appellant, he will pass necessary order in favour of the appellant and in that event, the application for refund already filed by the appellant should be considered in accordance with law." 6. Mr. Saraf, learned Advocate appearing for the appellant submitted that his client was not represented when the writ petition was taken up for hearing by the learned Trial Court, though an affidavit-in-opposition had duly been filed. The learned Trial Court does not appear to have considered the contents of the affidavit-in-opposition filed on behalf of the appellant. He contended that two points have specifically been taken : (a) that the order of assessment has become final and (b) the letters dated 23rd May, 2012 seeking to assail the assessment were written by way of an afterthought. He cont....
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....rd on merits. The Appellate Tribunal, however, reversed the order of the appellate authority on the ground that the order of assessment having not been challenged, no question of refund arose. It is this order of the Appellate Tribunal, which was under challenge before this Court. This Court held that the application for refund has to be heard on merits. 11. Mr. Saraf contended that the prayer for refund in that case was made within 20 days or less than 20 days from the date of the order of assessment. In other words, the challenge to the order of assessment was thrown well within the period of limitation of an appeal, whereas in the case before us, the challenge to the order has been thrown almost a year after the order was passed. Therefore, the facts of these two cases are different and the judgment in that case cannot be applied to this case. He added that the views expressed by the Division Bench in Paragraph 17 of the judgment, quoted above, were not really required for the purpose of disposal of that appeal, nor did any question with regard to exercise of power under Section 17(5) of the Act arise before the Division Bench for consideration. Therefore, the views expres....
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....ntion is that the non-speaking order passed under Section 17(4) of the Act has to be followed by a judgment disclosing the reasons for the order. An appeal lies against an order not against the judgment. In assailing an order what would naturally fall for consideration is the validity of the reasons appearing for the judgment. 15. Mr. Choudhury submits that in the absence of confirmation in writing of the order of reassessment passed by the proper officer, he has to pass a fresh speaking order which shall furnish a fresh cause of action for an appeal. We are unable to accept this contention. 16. Mr. Saraf appears to be right in his contention that there can, in the circumstances, be no occasion for a fresh order. Order has already been passed. Only the judgment containing reasons has not been delivered. If the exporter or the importer wants the proper officer to deliver his judgment, all that the exporter or the importer has to do is to refrain from issuing his formal acceptance of the order passed under sub-section (4) of Section 17. In that case, the proper officer is obliged to deliver his judgment. The question of passing a fresh order would never arise. Any constru....