TaxTMI 
TaxTMI 
2019 (7) TMI 728
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....f Iron Ore Fines declaring the iron content as 61%. Iron Ore Fines were leviable to export duty during the period @ Rs. 300/- per MT. However, if the Fe content of the fines is less than or equal to 62%, then they were eligible for exemption in excess of Rs. 50/- per MT as per Notification No. 62/2007-Cus, dated 03.05.2007, which reads as follows: "Iron Ore Fines - Effective rate of export duty In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts iron ore fines of Fe content 62% and below falling under heading No. 11 of the Second Schedule to the Customs Tariff ....
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.... to pay differential duty as applicable along with interest. In reply, the Exporter submitted an unsigned memo of reply contesting the test report. 5. After following the necessary procedures but not giving the appellant a copy of the Chemical Examiner's test report, the Asst. Commissioner, vide his speaking order No. 2/2008-Cus, dt. 17.03.2008, finalised the assessment denying the benefit of exemption notification and confirmed the differential duty of Rs. 1,03,27,000/- along with interest. Aggrieved, the appellant appealed to the first appellate authority who upheld the order. In the earlier round of litigation, the Tribunal had directed that a copy of the test report to be provided to the appellant and it has been so provided. 6. L....
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....angadhar Narsingdas Aggarwal [1997(89) ELT 19(SC)] 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....
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....drawn at the same time. However, the department has done none of this and therefore their principles of natural justice have been violated. In view of the above, the Chemical examiner's test report should not be relied upon and they should not be denied the benefit of exemption notification based on this report and their assertion as substantiated by their test reports at the Discharge Port and Load Port should be considered. 8. Countering the arguments, Ld. DR submits that firstly, there is only one test report which was based on an authentic sample. The sample in case of the test report by the Chemical Examiner was drawn in the presence of both Customs Officers and the exporter. Both have duly signed on the test memo. This is the only ....
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....the differential duty as confirmed by the original authority and upheld by the first appellate authority needs to be affirmed. 10. We have considered the arguments on both sides and perused the records. 11. This is an unusual case in which there are three test reports indicating different levels of iron content. None of the three test reports are perfect. The test reports produced by the appellant are detailed and elaborate and indicate Fe content of below 62%. However, the samples were collected behind the back of the Customs Officers. Therefore, there is always a doubt as to how the samples were drawn. The test reports are as good as samples drawn. One cannot be termed a "diabetic or HIV positive" based on a blood test unless it is ....
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....e, the spare sample could have been sent for re-testing. Since none of these exercises was done, it is difficult to conclude that the Chemical Examiner's test report showed Fe content on wet MT basis. Therefore, the authenticity of this test report is also doubtful. In conclusion, we find none of the three test reports can be relied upon. Usually, any declaration made in the import/export documents are accepted unless there is evidence to the contrary. 12. In view of the above, we find that the department could not sufficiently establish that the declaration made by the appellant in the shipping bill that the Fe content of iron ore fine was below 62% was incorrect. 13. Under these circumstances, we find that the confirmation of differ....