TaxTMI 
TaxTMI 
2018 (10) TMI 1570
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....ellant under Section 117 of the Customs Act, 1962. Against the said order, the appellant filed appeal before the Commissioner (Appeals) which came to be rejected and the order-in-original was confirmed except for setting aside the penalty imposed under Section 117. Being aggrieved by the order-in-appeal the appellant filed the present appeal. 2. When the matter was called, none appeared on behalf of the appellant. It is observed that on earlier date also the appellant had taken adjournment therefore, we proceed to dispose of the appeal on merits, on the basis of available record. 3. Shri S.N. Gohil, ld. Superintendent (AR) appearing on behalf of the Revenue reiterated the findings of impugned order. He submits that the date of export is the date of let export order therefore, the notification issued on 10.05.2008 imposing export duty is applicable on the date of let export order. He placed reliance on the following judgments:- (a) Commissioner of Central Excise, Goa vs. Fomento Resources Pvt. Limited - 2017 (357) ELT 304 (Tri. Mumbai) (b) Jindal Saw Limited vs. Commissioner of Customs (Export), Mumbai - 2012(280) ELT 135 (Tri. Mumbai) (c) Narayan Bandekar & Sons Pvt. Limited v....
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....of 20,000 MT of iron ore fines at bank stream in barges. Examined the same superficially checked the desp. and quantity as per invoice and other related documents, RSS will be drawn in triplicate as per ISI specifications by recognized sampler in presence of CHA/exporter under customs supervision and the same will be forwarded to Dy. CC for test". Under this endorsement there is a remark "passed for shipment" of the Preventive Officer. He pointed out that this kind of endorsement was made separately on each day when the loading has happened. The learned Counsel argued that this is in fact the permission under Section 51 of the Customs Act and can be called a let export order. 5.2 He argued that there is no bar on granting such permission under Section 51 or the 'let export order' for part consignment and he relied on the decision of the Tribunal in the case of Kineta Minerals & Metals Ltd. - 2009 (241) E.L.T. 416 (Tribunal). He particularly relied on Para 6 of the order which reads as follows : The Customs procedure is like this. In case 6. of export of the goods, the export manifest is filed prior to the departure of the vessel in terms of Section 41 of the Customs Act. The s....
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....] 5 and 6 of the Shipping Bill (Electronics Declaration) Regulations, 2011 which reads as follows : The checklist together with the supporting "5. export documents and challan evidencing payment of duty and/or cess, if any, shall be presented to the proper officer of customs for making an order permitting clearance, for loading of goods for exportation, after examination of the export goods if so required. After making an 6. order under regulation 5 the proper officer shall generate the original (customs copy), exporter's copy exchange control copy and the export promotion copy of shipping bills". The learned Counsel argued that let export order on each consignment of the shipping bill is necessary otherwise the goods will be liable to confiscation under Section 13 of the Customs Act. He pointed out that the goods loaded in vessel without a let export order have been held to be liable to confiscation and penalty in the following cases of Saurashtra Cement Ltd. - 2013 (298) E.L.T. 580 and Nichrome India Ltd. - 2010 (251) E.L.T. 147. 5.4 The learned Counsel further sought to differentiate their case from the decision of the Commissioner (Appeals) in the case of Alpine Minera....
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....pervision and the same will be forwarded to Dy. CC for test". Under the endorsement the preventive officer has also recorded "passed for shipment". It is seen that in all these cases the duty has been paid before start of loading. The fact that permission of loading is granted implies that the officer has held that the goods are not prohibited. In each of the cases entire duty has been paid on the first date of loading. Thus each permission of loading can be construed to be a permission under Section 51 of the Customs Act. 14. In the case of Narayan Bandekar & Sons Pvt. Ltd., the Hon'ble High Court of Bombay reported in 2010 (259) E.L.T. 362 has observed that actual time of loading of the ship is not relevant for the purpose of ascertaining the date for the purpose of Section 16(1)(a). In the said case the duty was enhanced from 1-3-2007 while the goods were received in the port and order allowing shipment of the same was given on 28-2-2007 the loading of the goods happened on 1-3-2007. In these circumstances, the Hon'ble High Court held that the date on which let export order has been given, i.e., 28-2-2007 is the relevant date for the purpose of Section 16(1)(a). The facts in ....
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....s legal and proper. In fine, we are of the view that of the entire quantity covered by the two shipping bills, no export duty would be leviable as the order permitting clearance and loading has been done even prior to 1-3-2007 which is prior to the imposition of Export duty. Hence in terms of Section 16 of the Customs Act, in the present case, the rate of duty and valuation would be only as on the date of order permitting clearance and loading under Section 51 of the Customs Act, 1962. Any change subsequent to the date of order under Section 51 would not be applicable to the consignments in question. Hence we allow the appeal with consequential relief. In the said decision, the Tribunal distinguished the Boat note issued under Section 35 of the Customs Act from the permission given under Section 51 of the Customs Act. It was held that date of issue of boat note is irrelevant insofar as the determining the date relevant for the purpose of Section 15(1)(a). This decision is consistent with the decision of the Hon'ble High Court in the case of Narayan Bandekar & Sons (supra). The decision of Kineta Minerals & Metals Ltd. has been upheld by the Hon'ble High Court of Andhra Pradesh as....