2022 (2) TMI 632

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....004-09), export of Iron Ore Fine of Fe content up to 64% was allowed freely; that during the same period, export Duty was also was also levied on Iron Ore and Concentrates of all sorts at Rs. 300/- per Metric Tonne (M.T.).; that however, vide Notification No. 62/2007-Cus. dated 03.05.2007, exemption was given to Iron Ore Fines of Fe content of 62% and below, the export Duty on which was pegged at Rs. 50/- per M.T.; that as Fe content was the criterion for the purpose of levying Duty and it was not possible to determine the Fe content at the time of export and required provisional assessment awaiting final test report to confirm the Fe content, the appellant's 14 shipping bills were assessed provisionally; that before export of the goods was allowed, samples were drawn by the authorities for the purpose of testing; that for provisional assessments, the appellant was asked to execute PD-cum-test bonds, the finalization of which were to be done only after getting the final results in terms of Section 18 of the Customs Act, 1962 and that the final test results were obtained by the Customs Authorities wherein the Fe content was found much below 62%. 3. It is the case of the appellant....

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.... of a judgement of the Hon'ble Apex Court, which is the law of the land and which is binding on all the authorities, non-consideration of the same may even invite contempt. It is not only that such orders of the lower authorities are rectifiable, but could also be set aside for ignoring such a binding precedent. The order of Deputy Commissioner of Customs dated 07.05.2010 has very conveniently ignored not only the facts and ground realities canvassed by the appellant, but also the very decision of the Hon'ble Supreme Court relied upon by the appellant in the case of Gangadhar Narsingdas Aggarwal (supra), which is the guiding factor insofar as the assessment in the case on hand is concerned. Hence, prima facie, the order of the Deputy Commissioner of Customs not only suffers from serious legal infirmities, but is also unsustainable. 8. The appellant has placed reliance on the decision of the Learned Mumbai Bench of the CESTAT in its own case for earlier periods in Customs Appeal Nos. 759 to 767 of 2009 [Final Order Nos. A/516 to 524/2010 dated 29.09.2010] wherein an almost similar issue was considered and the Learned Bench after detailed analysis, came to the conclusion that non-....

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....try, the decision of TISCO was not considered at all. In the case of Hindustan Lever Ltd. vs. Commissioner of Central Excise, Mumbai 2006 (202) ELT 177 (Tri. LB) the Larger Bench of this Tribunal has held that even if there is a subsequent decision of the apex court on the subject, that is to be followed and in this case the decision of TISCO was already there when the Bills of Entry were assessed. In the case of Union of India vs. Aluminium Industries Ltd. 1996 (83) ELT 41 (Ker.) the Hon'ble Kerala High Court while dealing with the similar circumstances, where at the time of assessment, the correct rate of duty was not applied by the proper officer, later on the same was held by the Hon'ble Kerala High Court as an error arising in assessment on account of omission to apply the correct rate of duty. While dealing with the issue the Hon'ble Kerala High Court has observed as under:- Four types of errors are mentioned in the section for invoking power under it : (1) clerical mistakes (2) arithmetical mistakes (3) errors arising from accidental slips and (4) errors arising from accidental omissions. If any one of the above types of errors has crept in, then the corrective powe....

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....hich time the time-limit for filing refund claim under Section 27 or an appeal under Section 128 ibid. had already expired; that therefore, the appellant's rectification application was an afterthought. 9.2 When the appellant filed its first request for finalization of the shipping bills, which was acknowledged as having been received on 27.05.2009, the Revenue assumed a grave silence, which prompted the appellant to make repeated requests vide letters dated 04.10.2009, 10.03.2010 and 24.03.2010. There is also no rebuttal by the Revenue insofar as the contention of the appellant that the final report was not made available to it and had it been communicated, perhaps the appellant would have requested for re-assessment in time. But however, the requirement of law is that a provisional assessment, if treated as such, shall be treated as provisional for all practical purposes. Section 18 of the Customs Act, 1962 lays down the provisional assessment of Duty; sub-section (4) incorporates the refund, if any, to be granted, within three months from the date of assessment of Duty finally and sub-section (5) refers to unjust enrichment, which is not the case here since the Revenue has ne....