2022 (8) TMI 11

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.... Laddha, ld.Chartered Accountant for the appellant and Shri M.P.Toppo, ld. Departmental Representative. 3. Brief facts leading to the present dispute, which are relevant for our consideration, inter alia, are that the appellant had filed 12 Shipping Bills for exportation of Iron Ore Fines and Iron (Fe) content was declared at more than 62% ; that the Revenue assessed to duty at Rs.300/- per MT as was leviable ; that the appellant requested the Adjudicating Authority/Assistant Commissioner for rectification/correction of the error ; that the Deputy Commissioner of Customs (Exports) vide letter dated 04.06.2010 intimated the appellant that there was no clerical or arithmetical error in the assessment of the Shipping Bills and hence, the re....

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.... (a) In terms of the Supreme Court's decision in the case of M/s Gangadhar Narsingdas Agarwal (supra) the Fe content is required to be determined on the basis of the exported weight of Iron Ore Fines which would include the weight of the moisture in it.  (b) The Assessing Office has assessed the duty not on the basis of the gross weight (i.e. including the weight of the moisture) and hereby determined the Fe content but by taking the Fe content on the dry wet basis of the Iron Ore Fines. This is contrary to the ratio of the Supreme Court's decision in the case of Gangadhar Narsindas Agarwal (supra). (c) Assessment should hus be done by first determining the Fe content as above based on the ratio of Supreme Court's d....

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....and that the same was rectifiable within the meaning of Section 154 ibid. In the said Order-in-Original dated 11.05.2015, the Assistant Commissioner has himself observed at Paragraph 7 that as per record, the Department did not file any appeal against the said order of the Commissioner (Appeals). 6. The only take-away from the above is that the correct Fe content was required to be determined on the basis of the guidelines contained in the judgement of the Hon'ble Apex Court in the case of Gangadhar Narsingdas Aggarwal (supra). The same having not been done here, in the case on hand, it is clear to us that the order of First Appellate Authority dated 06.10.2010 is correct. It is the settled position of law that not following the order of....