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2022 (9) TMI 1306
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....THE PETITIONERS 21 F SUBMISSIONS ON BEHALF OF THE REVENUE 22 G DISCUSSION AND CONCLUSION 23 2. Rule. Respondents waive service. By consent of parties heard finally. A. PRELUDE: 3. This petition under Article 226 of the Constitution of India, inter alia challenges the legality of the General Alert Circular no. 02/2019 dated 12/15th April 2019 (for short, 'GA Circular'), issued by the Directorate of Revenue Intelligence (DRI) and two orders-in-original dated 17.03.2022 and 31.03.2022, passed by the Assistant Commissioner of Customs. The petitioners contend that in passing the impugned orders-in-original, the Assessing Authority has been guided by the GA Circular which, according to the petitioners, is illegal and could not be taken into consideration by the Assessing Officer to pass the impugned orders-in-original to levy customs duty on the export of iron ore as undertaken by the petitioners. It would be relevant to note the prayers in the Writ Petition, which read thus : i. declare that the General Alert Circular No. 02/2019 dated 12/15 April 2019 is illegal, unsustainable and without authority of law; ii. declare that the fin....
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.... d. direct the Respondents not to encash the Bank Guarantees provided by the Petitioner No. 1 in the instant matter or take any other coercive action as a consequence of the Impugned Order dated 17.03.2022 and the Impugned Order dated 31.03.2022 viii. Grant ad-interim reliefs in terms of prayer clause (vi) above; and ix. grant such further and other reliefs or directions as this Hon'ble Court may deem fit and necessary in the facts of the present case." 4. At the outset, it needs to be observed that as the challenge raised by the petitioners is also to the orders-in-original against which the petitioners have an alternate remedy of an appeal under Section 129-A of the Customs Act, 1962, a preliminary objection on the maintainability of the petition, on such ground was raised on behalf of the respondent-Revenue. It was hence suggested to Mr. Shah, learned Counsel for the petitioners as to why the issues as raised in the petition cannot be raised in a statutory appeal. Mr. Shah responding to such query, would however submit that this Court ought to entertain this Petition as the petitioners have raised a challenge to the legality and validity of the GA Circul....
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.... 2601 11 12 -- 62% Fe or more but below 65% Fe kg 10% - 2601 11 19 -- 65% Fe and above kg 10% - -- Iron ore lumps (below 60% Fe, including black iron ore containing upto 10% Mn) 2601 11 21 -- Below 55% Fe kg 10% - 2601 11 22 -- 55% Fe or more but below 58% Fe kg 10% - 2601 11 29 -- 58% Fe or more but below 60% Fe kg 10% - -- Iron ore fines (62% Fe or more) 2601 11 31 -- 62% Fe or more but below 65% Fe kg 10% - 2601 11 39 -- 65% Fe and above kg 10% - -- Iron ore Fines (below 62% Fe) 2601 11 41 -- Below 55% Fe kg 10% - 2601 11 42 -- 55% Fe or more but below 58% Fe kg 10% - 2601 11 43 -- 58% Fe or more but below 60% Fe kg 10% - 2601 11 49 -- 60% Fe or more but below 62% Fe kg 10% - 2601 11 50 -- Iron ore concentrate kg 10% - 2601 11 90 -- Others kg 10% - 2601 12 -- Agglomerated : ....
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....appropriate basis for determination of the Fe (iron) content in the iron ore exported by the petitioners was required to be done only using Wet Metric Ton (WMT) method, in accordance with the decision of the Supreme Court in Gangadhar Agarwal's case, which approved the decision of the learned Single Judge of this Court in Gangadhar Narsingdas Agarwal Vs. A.C. Martins & Ors. Misc. Civil Petition No. 1120/1974 decided on 4.10.1979, as confirmed by the Division Bench in its judgment in Union of India & Ors. Vs. Gangadhar Narsingdas Agarwal & Ors. 1986 SCC OnLine Bom 506. In such decisions, the Courts throughout approved the Wet Metric Ton (WMT) method to determine the percentage of iron ore, which included taking into account all the impurities including moisture in the iron ore lump or fines, 10. The petitioners contend that the Assessing Officer, however, did not agree with the petitioners' case that the WMT method needs to be followed. The petitioners contend that the Assessing Officer applied the Dry Metric Ton (DMT) method on the basis that the levy of export duty was required to be made on ad valorem rates of duty. According to the petitioners, the Assessing Officer c....
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....y 2012, issued by the Board in exercise of its powers under Section 151-A of the Customs Act, which according to the petitioners, prescribe the WMT method for determination of the iron content in the iron ore to be exported, for the purpose of its classification for levy of duty, as per the decision of the Supreme Court in Gangadhar Agarwal's case. 13. The petitioners contend that the Revenue also cannot justify adopting the "Dry Metric Ton" (DMT) method on the ground that there is a change in the basis of the levy namely that the rate of export duty from 13.06.2008 being changed from the per ton rate basis to ad valorem basis. It is the petitioners case that such change in the rate of tariff is no justification so as to alter and/or nullify the norms as laid down by the Supreme Court in Gangadhar Agarwal's case which had found acceptance by the Revenue even after the amendment of the Second Schedule of the Tariff Act so as to prescribe levy of duty at the ad valorem rates w.e.f. 13.06.2008. 14. The petitioners have contended that the determination of Fe (iron) content on WMT basis was considered to be an acceptable norm in the prior assessments, which was clear from ....
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....tended that the case of the petitioners that the issue in the matter is covered by the decision of the Supreme Court in the case of Gangadhar Agarwal (supra), is not correct, as the petitioners have misinterpreted the law in that regard. Hence the petitioners' case that the determination of the iron (Fe) content should be on the WMT method and not as per DMT method, is untenable. It is contended that there is a specific method for testing iron ore as prescribed by the Bureau of Indian Standards IS 1493-1953 [IS 1493-1(1981), which is followed for the purpose of calculating the iron content. The Revenue has next contended that Section 14 of the Customs Act defines the value in case of export of goods as a transaction value of such goods. This was the reason that the value of the goods in all shipping bills relating to export of Iron Ores declared by the exporters is the value of goods arrived on Dry Metric Ton (DMT) basis. It is contended that in all shipping bills, the quantity of the goods as declared is the weight of the iron ore on dry basis. It is contended that also the unit price of the goods exported is as per DMT of iron ore exported. Therefore, the value of the goods w....
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.... 2601 11 31 ---- 62% Fe or more but below 65% Fe kg. 10%$ - 2601 11 39 ---- 65% Fe and above kg. 10%$ - ---- Iron ore fines (below 62% Fe) - 2601 11 41 ---- Below 55% Fe kg. 10%$ - 2601 11 42 ---- 55% Fe or more but below 58% Fe kg. 10%$ - 2601 11 43 ---- 58% Fe or more but below 60% Fe kg. 10%$ - 2601 11 49 ---- 60% Fe or more but below 62% Fe kg. 10%$ - Referring to the above Tariff items, it is stated that the classification of the goods, which is iron ore, can only be decided after arriving at the Fe (iron) content of the consignment. It is stated that the methodology to arrive at the Fe (iron) content, a sample has to be removed for determination of the moisture and the other impurities which are quantified only after testing the sample on DMT basis, as per the procedure laid down in the BIS standard (IS: 436 (Part1/Section I) 1964). It is stated that thus, the decision of the Supreme Court in Gangadhar Agarwal's case is not applicable in the instant case. It is contended that the petitioners cannot randomly pick up the WMT meth....
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.... content to be determined on "as received basis/Wet basis/Natural basis" which was being determined by not implying any technical test analysis, but was derived from the Fe (iron) content determined on such Dry (DMT) basis, by applying a simple arithmetical calculation under a formula. The Revenue has denied the case of the petitioners relying on several decisions to contend that none of the said decisions are applicable in the facts of the present case, inasmuch as, there is no contravention of any orders of any Courts or of the provisions of the Constitution of India or the CBIC circulars, while passing the impugned orders-in-original and the impugned GA Circular. On such contentions, it is prayed that the petition be dismissed. D. Petitioners' Rejoinder Affidavit: 18. There is a detailed rejoinder affidavit filed on behalf of the petitioners, inter alia, contending that in the reply/affidavit, the respondent has proceeded on a fundamentally erroneous appreciation of the scheme of levy and assessment of export duty. The Revenue's contention that the WMT basis of determination of Fe (iron) content as per the decision in the case of Gangadhar Aggarwal, is no longer ap....
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....r/affidavit are not required to be discussed, suffice it to observe that, the petitioners have dealt with the reply/affidavit in detail in supporting the prayers as made in the petition contending that the petition needs to be allowed. E. Submissions on behalf of the Petitioners: 21. Mr. Shah, learned Counsel for the petitioner has made the following submissions. (i) The principal contention of Mr. Shah is that the basis for duty demand relevant for the assessment in question, necessarily ought to have been, as to what was laid down by the Supreme Court in Gangadhar Agarwal's case, which confirmed the view taken by the learned Single Judge of this Court and as confirmed by the Division Bench, namely that the export of iron ore was required to be assessed by the WMT method and not the "Dry"/ DMT method. (ii) It is submitted that in passing the impugned orders-in- original the Assessing Officer has ignored in its entirety the statutory scheme namely that the classification under the first schedule, which enabled determination of the appropriate subheading of classification, which classification is based on the percentage (Fe) content of the iron ore and it was....
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....under Section 151A of the Customs Act. It is also illegal as it deviates and/or nullifies the accepted norms of classification in regard to the determination of the percentage of iron ore, as per the decision of the Supreme Court in Gangadhar Agarwal's case. Thus, a circular which is totally alien to the adjudication, which has found an implied recognition in the orders-in- original being passed, is required to be held illegal and unconstitutional being violative of Articles 14, 19(1)(g), 21, 141 and 265 of the Constitution of India. (vii) It is submitted that the DRI could not have issued the General Alert Circular which would be in conflict with a circular issued under Section 151A of the Customs Act. For such a reason when an apparent conflict is brought about, it would be necessarily required to be held that the General Alert Circular is illegal and contrary to Section 151A of the Customs Act. It is submitted that to avoid such conflict the Government of India in the Ministry of Finance (Central Board of Indirect Taxes and Customs) had issued instructions No.19/2021(Customs) dated 17 August 2021 clarifying that the Directorates / Commissionerates /audit shall not i....
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....sion of the learned Single Judge of this Court in Gangadhar Narsingdas Agarwal Vs. A.C. Martins & Others (supra) and the decision of the Division Bench of this Court in Union of India and others V/s Gangadhar Narsingdas Agarwal (supra), decision of the Supreme Court in Union of India v/s. Gangadhar Narsingdas Agarwal (supra), the decision of the learned Judicial Commissioner Goa, Diu and Daman in Sociedade De Fomento Industrial Pvt. Ltd. vs K.C. Lakiri And Another 1982 SCC Online GDD 5, Paper Products Limited V/s. Commissioner of Central Excise (1999) 7 SCC 84 and Pioneer Embroideries Ltd v/s. Commissioner of Customs, Mumbai (2020) 20 SCC 457. F. Submissions on behalf of the Revenue: 22. On the other hand, Ms. Asha Desai, learned Counsel for the Revenue has made the following submissions:- (i) It is her preliminary submission that the petitioners have an alternate remedy available under the provision of Section 129-A of the Customs Act, of an appeal to be filed before the Appellate Authority to assail the impugned order-in-originals. It is her submission that the questions which are raised by the petitioners are all questions of facts which can be effectively dealt o....
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....ead in its entirety and is mis-interpreted by the petitioners to contend that it interprets as to what was held by the Supreme Court in Gangadhar Agarwal's case. It is her submission relying on the extensive contentions as taken in the reply affidavit that even the Supreme Court had recognized the applicability of the ISI standards, which are now succeeded by the BIS norms. There is no other standard method acceptable to the Government of India for the determination of the iron ore content in the iron ore lumps/iron ore fines. The petitioners have also not suggested any alternative method. (vi) It is also her submission that the Finance Act, 2022 as referred by the petitioners is only clarificatory in nature, inasmuch as, what has been incorporated is only a clarification which in no manner whatsoever is in contradiction to what was applicable under the Customs Tariff Act read with the Schedule thereunder. It is submitted that even from a plain reading of the relevant headings and sub- headings as prevailing in the first schedule to the Tariff Act, there is nothing to infer that the classification had to be on the Wet Metric Ton (WMT) basis. It is submitted that in view of....
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....to note the very genesis of this case in some detail and how it stood concluded, travelling from two Benches in the Bombay High Court, and ultimately the Supreme Court. 28. Gangadhar approached the learned Single Judge of the Bombay High Court in proceedings under Article 226 of the Constitution (Miscellaneous Petition no.1120 of 1974) contending that he was engaged in the business of export of lumpy iron ore and iron ore fines. He contended that by notification dated 02.08.1966 item no.28 and 29 were introduced in the Second Schedule to the Indian Tariff Act, 1934 whereby customs duty @10% per metric ton was levied on the exports of lumpy iron ore and customs duty @Rs.5/- per metric ton on the export of iron ore fines. He contended that Government of India had issued a notification dated 24.07.1967 under the powers conferred under Section 25(1) of the Customs Act exempting iron ore fines falling under item 29 of the Second Schedule to the Indian Tariff Act, 1934 when exported out of India from so much of the duty of customs leviable thereon under the Indian Tariff Act in the following manner: (a) Where the iron content in such iron ore fines was less than 62 per cent a....
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.... not proper to determine the iron content in that condition. Such claim of Gangadhar was not disputed by the Customs Department. Gangadhar informed M/s Italab (Goa) Pvt. Ltd. and requested to give the percentage of iron contents on natural basis or in a moist condition. Italab (Goa) Pvt. Ltd. (Industrial Testing and Analytical Laboratory) which was a recognised Government laboratory informed Gangadhar by its letter dated 30.09.1971 that the iron content on natural basis was 57.23% in respect of the consignment exported by Gangadhar. On receipt of such letter Gangadhar filed several applications for refund of the excess duty paid by him. He filed an application on the ground that iron ore content on the date of the export was only 57.23% hence he had become entitled to better advantage under the notification and the customs duty levied on the basis of the iron content being 62.38% was excessive. Such refund application of Gangadhar was considered by the Assistant Collector, Customs and Central Excise, who rejected Gangadhar's claims by different orders. The Assistant Collector was of the opinion that the claim made by Gangadhar and supported by letter of Italab (Goa) Pvt. Ltd., ....
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....ined a certificate from a recognized office of the Government Italab (Goa). Pvt. Ltd and such certificate unmistakably indicated that iron content was 62.38% and therefore recovery of duty was perfectly appropriate. This was not disputed on behalf of the petitioner Gangadhar. However, Gangadhar argued that the iron contents were mentioned in the certificate after analysis of sample dried at 105o C. He contended that the said certificate would not truly reflect the iron content in the exportable goods on the date of the export. The submission being that the contents of iron in a sample dried at 105o C is excessive than what is found in moist conditions. 34. In the above circumstances, the Court observed that the question which required an answer on the petition was whether it was open for the petitioner Gangadhar to claim that iron content in the exported goods was only 57.23% even though the certificate indicated it to be 62.38%. 35. Gangadhar supported his contention by placing reliance on letter issued by Italab Private Limited dated 30.09.1971 to contend that the iron content on natural basis or moist condition was only 57.23%. The Court observed that it was not in dispute....
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....ce be assumed that the Government had in mind that the iron content should be determined only after analysis of dry sample at 105o C and not the proportionate determination while in moist condition. The Court observed that from the material on record, it would have to be held that it is a recognized practice to determine the iron content in the moist condition on a proportionate basis by finding out the iron content in the dried sample analysis. The Court also recorded satisfaction from the letter dated 30.09.1971 issued by Italab Private Limited and letter dated 23.06.1978 of Pattinson & Stead that it is a recognized practice to ascertain the iron content in the goods in moist condition. There was one more peculiarity, the Court also observed that Gangadhar had in fact adopted proceedings to claim that the weightment of the exportable goods should be done and custom duty should be charged on dry tonnage basis. Gangadhar also claimed that on the date of the export of the goods, the goods being in moist condition, the weightment included also the moisture and the weightment was required to pay higher rates and therefore, the price of the consignment should be determined on dry tonna....
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....he only method of analysis accepted by the Indian Standard Institute, and hence the result of that analysis must be made applicable directly or straightway to determine the percentage of iron contents in the iron ore exported by the petitioners. In our view, the submission has no merit whatever. Although it is true, as submitted by Mr. Rege, that moist lumpy iron ore and moist iron ore fines have to be dried for the purpose of determining the iron contents, there is a mathematical formula by which, on the basis of the results of these aforementioned analysis, the iron content in moist lumpy iron ore and moist iron ore fines can be easily determined. That formula has been in fact explained in a letter dated 23rd June 1978 addressed by Toman Trading Co. Ltd., a copy of which is at Exh. 'A' to the petition. It appears that following this very method, Italab (Goa) Pvt. Ltd. have issued certificates as to the iron content in the moist iron ore fines and moist lumpy iron ores exported by the petitioners, and these certificates show that the iron content in these iron ores was to the extent of about 57 per cent. Merely because in respect of moist iron ore the iron content cannot b....
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....table to weight and therefore, once the iron content is determined keeping in mind the total weight, the percentage can be determined from the iron content from the rest of the impurities inclusive of moisture and thereafter, ascertain in which category the lumpy iron ore would fall for the purposes of charging duty under the aforesaid notifications. 41. The Supreme Court accordingly confirmed the view taken by High Court observing that if the content of the iron ore is determined after ignoring the moisture, the percentage would be relatable to the lumpy iron ore weight at the relevant point of time for the purposes of charging duty. The Supreme Court observed that even if two views were possible the view taken by the High Court being a plausible one would not call for intervention by the Supreme Court order. The relevant observations of the Supreme Court are required to be noted, which read thus: "3. By Notification No. GSR 1152, dated 24th July, 1967 issued under Section 25(1) of the Customs Act, the Government exempted iron ore fines falling under Item 29 of the Second Schedule to the Tariff Act when exported out of India from so much of the duty leviable thereon as....
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....ght which was available at the given point of time after the iron content is determined. 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 content from the rest of the impurities inclusive of moisture and thereafter ascertain in which category the lumpy iron ore would fall for the purposes of charging duty under the aforesaid Notifications. This view which the learned Single Judge took and which came to be affirmed by the Division Bench of the High Court appears to us to be the correct view to take, for the reason that if the percentage of iron content is determined after ignoring the moisture the percentage would not be relatable to the lumpy iron ore weighed at the relevant point of time for the purposes of charging duty. We, therefore, do not think that the High Court committed any mistake in the view it took. Even if two views were possible the view taken by the High Court being a plausible one would not call for intervention by this Court. 42. It is thus clear that the Supreme Court in affirming the view of the learned Single Judge as also ....
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....ron contents to be determined by the method of analysis extended by the Indian Standard Institute and the result of such analysis, by applying such method must be made applicable directly or straight away to determine the iron content in the iron ore being exported, as it is not the practice that lumpy iron ore and moist iron ore fines are dried for the purpose of determining the iron contents. (vi) Although it is true that there is a mathematical formula by which on the basis of the result of such analysis, the iron content in moist lumpy iron ore and moist iron ore fines, can be easily determined. Such formula is being regularly applied by the expert laboratories not only in India but also other countries. A certificate issued by such laboratories in regard to the iron content in the moist iron ore and moist lumpy iron ore being exported, indicating the percentage of the iron content in the goods subject matter of export, needs to be accepted. (vii) Merely because in respect of moist iron ore, iron content cannot be determined directly by physical analysis, this cannot lead to a result that the iron ore content cannot be determined at all or that the assessee sh....
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....be examined whether there is applicable exemption notification related to either description of the goods and/or the classification (headings or sub headings) of the goods as regards the levy of export duty on the export of iron ore. 45. It appears to be not in dispute that during the period prior to 13 June 2008, the prescribed rate of levy was Rs.300/- per ton and post 13 June 2008, the prescribed rate of levy was 20% ad valorem, which was modified to 30% ad valorem. 46. We, therefore, find much substance in the contention as urged on behalf of the petitioners that the Fe (iron) content of the iron ore was required to be determined at the second stage as noted above, to be undertaken on the basis the iron ore as it naturally stood at the time of export, namely, on the Wet method as in such condition the iron ore would contain moisture and other impurities. 47. Thus, it needs to be stated that the iron ore being exported is not iron ore in its pure form, which can be determined only by applying the dry method i.e. when the lumpy iron ore is dried at a temperature of 105o C to 110o C, and by such process, the impurities/moisture are weeded out. This can happen only in a la....
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....e tariff headings as it stood earlier and at present which we have already noted above, there is no change whatsoever in the "description of the goods" except for a minor variation in the percentage of iron ore (Fe) classified in different categories. What has undergone a change is only the rate of the duty which, when the Courts decided in Gangadhar Agarwal's case, it was at a rate per ton basis and which has now been changed to an ad valorem duty. Except for such change, not only the classification but the basis of classification as appearing in the different headings and sub-headings appears to have remained the same. There is also no material placed on record by the Revenue to the effect that what was accepted to be an established practice in Gangadhar Agarwal's case, till the assessment in question was being undertaken in any lawful manner was discarded even between the period from June 2008 to April 2022. We thus find much force in the contention of Mr. Shah that even after the new regime of the rate of tariff was modified to ad valorem basis w.e.f. 13 June 2008, there is no denial that the department was consistently following the basis of determination of the Fe (ir....
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....e any legislative steps to have a regime different from what was recognized and followed, as laid down in the said decision of the Supreme Court or in other words to substitute the Wet (WMT) method. This is clear from the fact that such modification from the Wet method to the Dry method, has been very recently introduced by an amendment which is brought about w.e.f. 1st May 2022, by the Finance Act 2022, when a supplementary note has been incorporated in the Third Schedule in relation to the products under the heading 2601 to provide that the percentage of Fe (iron) content wherever specified shall be calculated on the Dry weight or Dry Metric Ton (DMT) basis. The amendment reads thus: "(20) in Chapter 26,- (i) in clause (f) of Note 1, for the brackets, word and figures "(heading 7112)", the brackets, words and figures "(heading 7112 or 8549)" shall be substituted; (ii) after Sub-heading Notes, the flowing Supplementary Note shall be inserted, namely :- "Supplementary Note : For the products of heading 2601, the percentage of Fe content, wherever specified, shall be calculated on the Dry Weight or Dry Metric Tonne (DMT) basis." (empha....
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....ustoms authorities. Thus, issuance of the GA circular cannot mean that GA circular in any manner would guide the course of adjudication, as if it takes a character of a binding rule or law, when the assessment/adjudication is required to be undertaken by the Assessing Officers applying the provisions of the Customs Act read with the Tariff Act and the principles of law laid down in the decisions of the High Courts and the Supreme Court, in relation to interpretation of the headings/sub-headings under the respective schedules prescribed under the Tariff Act. Be that as it may, we are not required to make any further clarification in this regard as we have already come to a conclusion that in regard to the assessments prior to 1 May 2022, the assessment would be required to be undertaken under the wet method basis. We put the issue on the GA circular at rest accepting such contention as urged on behalf of the Revenue and our above observations in this regard. In view of such observations, the GA Circular, in any event, cannot be relevant to guide the assessment in respect of the period prior to 1 May 2022. 53. In view of the above discussion, we are certain that the principles of ....
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....ry Metric Ton (DMT), would not be of any relevance. We have sufficiently discussed this issued in the foregoing paragraphs. 56. Ms. Desai's next contention is referring to the GA Circular No. 2/2019 dated 12/15 April 2019 and a Circular dated 17 November 2014 that the Bills of Indian Standard (BIS), testing method are required to be applied for determination of the iron (Fe) content in the iron ore. Her contention is that even the Supreme Court as also the Division Bench of the High Court in Gangadhar Agarwal's case, have not barred the applicability of the ISI method and now succeeded by the BIS testing method for determination of the percentage of the iron ore. We find that the recognition of the BIS method has been discussed in the GA Circular no. 2/2019 dated 14/15 April 2019 and in regard to its applicability, to the assessment in question, we have already held that the GA circular would not be applicable for assessments for a period prior to 1 May 2022. We may clarify that it may be that the ISI or for that matter the BIS testing method for determining the iron content in the iron ore may be one of the acceptable methods, however, the same would be required to be a....
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.... 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 ore for determination of Fe contents shall be made on Wet Metric Ton (WMT) basis which in other words mean deducting the weight of impurities (inclusive of moisture) out of the total weight/Gross Weight to arrive at Net Fe contents. 4. In case of any difficulty in arriving at the net Fe content, assessment may be based on test result which directly determines the Fe contents. 5. Pending assessments on the issue, if any, should be finalized accordingly. 6. Difficulties, if any, faced in the implementation of this circular, may be immediately brought to the notice of the Board. Yours faithfully (A.K. Goel) Senior Technical Officer Tariff Unit (Empasis added) 58. It is thus quite clear that such communication is categorically in regard to the applicability of the decision of the Supreme Court in Gangadhar Agarwa....
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....radesh & Others (2021) 6 SCC 771. 60. Now applying the position in law as we have discussed in the foregoing paragraphs to the impugned orders-in-original, it is seen from the bare perusal of these orders that the Assistant Commissioner of Customs (export) was conscious of the purport of the decision of the Supreme Court in Gangadhar Agarwal's case. He has infact in several paragraphs of the impugned order has referred to the said decision, which was also relied before him by the petitioners. However, what is glaring is that despite such clear position in law, the Assistant Commissioner overlooking the clear position in law as laid down by the Supreme Court in the said decision as also recognised by the revenue in its own circular dated 17-02-2012, nonetheless classified the (Fe) content in the iron ore as exported by the petitioners on the dry method (DMT) basis. This is clear from the reading of impugned orders as also the conclusion in the said orders, when the Assistant Commissioner in finalization of the provisional assessment of the shipping bills considers the (Fe) content as per the Dry method. The operative order is similar in both the orders-in-original wherein the....