2018 (8) TMI 430

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....ty of 2,000 M.Ts was deducted as moisture content. The Assessable value declared in the said Shipping Bill was Rs. 9,64,85,000/- @ Rs. 100 USD per M.T. The Customs duty @ 15% Adv. Paid on an Exchange rate of Rs. 41.95 per USD was paid amounting to Rs. 1,44,72,750/- plus Education Cess of Rs. 25,000/-. The transaction was on the basis of contract for sale and contract for purchase. The said transaction was covered under provisional invoice No. AE 3/08-09 dated 22.08.2008. The said Customs duty of Rs. 1,44,72,750/- was paid under T.R.6 Challan dated 23.08.2008. The appellants' claims that, all of a sudden, due to global recession, the market price of Iron Ore fines crashed and as a result of which the buyers refused to receive the consignment; that after protracted discussion, the buyer agreed to buy the goods at the rate of US$ 25 per M.T; that these facts were brought to the notice of the Reserve Bank of India who, vide their letter dated 05.11.2008, permitted for reduction in the invoice price of the consignment from 24,13,623.28 USD to 6,00,500 USD with directions to ensure that the export incentives are not availed. Since the Assessable value quoted in the Shipping Bill has been....

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.... of filing an appeal. I have given due consideration to the rival submissions. I notice that the Hon'ble Tribunal, Bangalore has in the case of "Aditya Birla Nuro Ltd., Vs. CC, Bangalore" reported at [2008 (222) ELT 249 (Tri. - Bang.)] has distinguished the said judgment of the Supreme Court and also the judgment of the Apex Court in the case of "Priya Blue Industries Ltd.," reported at [2004 (172) ELT 145 (S.C.)] and held that filing of refund claim itself is challenge of assessment order and the appellants is entitled to claim re-assessment in terms of their refund application. In the same decision, the Hon'ble Tribunal has referred to the judgment of three judges, rendered in the case of "Karnataka Power Corporation" reported at [2002 (143) ELT 482 (S.C.)]. Similar view is held in the case of "Jindal Vijayanagar Steels Ltd., Vs. Commissioner" reported at [2006 (206) ELT 529 (Tri. - Bang.)]. In view of the settled position in law, I am inclined to hold that separate appeal against the order of assessment is not required to be filed as filing of refund claim is itself challenge of assessment order. 9. The second issue relates to determination to whether redetermination of....

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....pellants has permitted for reduction in the invoice price. For the sake of immediate reference this letter of the RBI dated 5th November 2008 is reproduced hereunder. RESERVE BANK OF INDIA FE.BG.EXF.No. 2389/06.06.002/2008-09 November 05,2008 The Branch Head AXIS Bank, No. 119, 80 Ft. Road, 7th Block, Koramangala, Bangalore-560095. Dear sir, Reduction in invoice value - M/s Alfa Exports Please refer to your letter dated November 3, 2008 on the above subject. We have no objection from the FEMA angle for the reduction in invoice value of invoice No. AE/03/08-09 dated August 22, 2008 of the captioned exporter from USD 24,13,623.28 to USD 6,00,500.00 You may, however, ensure that the exporter surrenders the proportionate export incentives if availed, in respect of the above export. Yours faithfully Sd/- S.M. Hiremath Manager 10. To sum up, I am inclined to allow the appeal on the grounds that, i) filing of refund claim itself is a challenge of assessment order. ii) the refund claim cannot be rejected irrespective of whether th....

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....ook the delivery of the consignment on reduced rate. It is his submission, these facts were communicated to the Reserve Bank of India and while seeking reduction in invoice price; the Reserve Bank of India of under letter dated 05.11.2008, permitted for reduction in the invoice price of respondent herein above and he submits that they were disallowed the export incentives from the export to the reduced value of consignment. It is his submission that, since the export value at the time of export was considered for discharge of the export duty as the transacted value and were provisional, they filed the refund under Section 27 of the Customs Act, 1962. It is his submission that the shipping bill which was assessed by the Superintendent of Customs and Central Excise Krishnapatnam Port, Nellore is provisional. In support of these arguments, he draws our attention to the shipping bill and indicates the remark put by the assessing officer. He would submit that subsequently, this was finalized by accepting the reduced invoice value has accepted by the Reserve Bank of India and hence they filed the refund claim. It is his submission that if assessment is provisional for one reason, it woul....

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.... 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf:" The value declared by the appellant in the case in hand is a provisional transaction value as the invoice indicates that is a provisional invoice. 9. Provisions of the Section 16 mandate for determination of rate of duty in respect of export goods and Section 18 of the Customs Act, talks about provisional assessment of duty in the case of exports and imports. Provisions of Section 16 has to be given a play by reading to Section 14, which would indicate that value of export of goods shall be the transaction value of those goods which means the price actually paid or payable for the goods when exported fr....