2023 (10) TMI 757

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.... in the iron ore fines was amended to below 58% form 60% in the earlier contract. The export price was also reduced to USD 125 Per MT. Since, the exporter has already paid duty @USD 153 Per MT, they have filed refund claim on the ground that the overseas supplier has allowed them price rebate @28$ Per MT, in terms of Addendum No.3 dated 31.05.2011 to the contract dated 13.04.2011, on 08.08.2011. 2. The Asst Commissioner, Paradeep rejected the refund on the following grounds: "(i) As per Section 27(I) of the Customs Act, 1962, the application has not been filed within one year of payment of duty. (ii) The date of filing of complete application should be reckoned as the date of filing of refund application. (ii) The date of payment of duty in this case is 11.5.2011 where as the date of filing of complete application is 23.11.2012 which is beyond one year in terms of Section 27(I) of the Customs Act, 1962. (iv) The Shipping bill dated 9.5.2011 though filed after introduction of self-assessment in Customs w.e.f. 8.4.2011, the shipping bill has not been reassessed by the exporter though value & quantity has been changed. (v) The refund cla....

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....goods is secured by an irrevocable Letter of Credit . Hence, the transaction fulfills all the essential elements of transaction value contemplated under Section 14(1) of the Customs Act, 1962 and Revenue is obliged to accept the 'transaction value' as clarified by the Ministry in the aforementioned two Circulars. (v) In the present case, the above said directions of the Ministry have not been complied with by the Adjudicating Officer or by the Commissioner (Appeals). (vi) As per clause-9 of the Contract, i.e. on 'Sampling & Analysis', the test result of the chemical composition of the export product by Intertek India Pvt. Ltd., was binding on the seller and buyer of goods and the sale price was accepted by both. Since the chemical composition of Fe was not within the guaranteed limits of 60%, the Contract price was required to the adjusted in the light of clause-5 of the Contract read with Addendum No. 3 dated 31.5.2011 (Annexure-9) on the basis of which the Buyer's banker got the letter of credit amended by reducing the FOB value USD 52,02,000 to USD 42,50,000 and intimated the same to the exporter's Banker, namely, Bank of Baroda, Mumbai on 01.06.2011 and Commer....

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....the export goods "iron ore fines" at 59.11% Fe content based on certificate issued by Intertek India Pvt. Ltd., on dated 23.5.2011. (ii). The subject shipping bill dated 9.5.2011 was filed by the exporter pursuant to the introduction of self-assessment provision in the Customs Act w.e.f. 8.4.2011 who has paid duties on self-assessment basis on 11.5.2011. Even after changes in vlue and quantity of export goods, the Shipping Bill has not been reassessed by the exporter and directly filed the refund application on 8.8.2011 which is beyond one year of the date of payment of duty as provided under Section 27(I) of the Customs Act, 1962. (iii). Hon'ble Apex Court in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd., reported in 2000 (120) ELT 285 (S.C.) has held that where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a refund claim on the ground that the adjudicating authority has committed an err....

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....t been done by the Customs Authority. if the base price of iron ore fines with 61% Fe content is taken at USD 153.00/PDMT, then the price at 59.11% of FE content should be 148.260 USD/PDMT. There is no hitch to adopt such price for the goods exported on 19.5.2011. I therefore, hold that there is substance in the arguments of the appellant for reassessing the value of export goods and granting of refund if any. Further, the claim is found acceptable for the simple reason that the certificate of quantity and quality issued by Intertek India Pvt. Ltd, are continent to make assessment of export of goods. It was, thus required to re-determine the quantity and quality of Iron ore fines on the basis of these certificates. The Assistant Commissioner has not taken the appellant's contentions for undisclosed reasons. I hold that there is merit to make re-assessment of assessment made earlier. In view of the above, the recalculation of duty liability on the goods is worked out as under:- Table Sl. No. Description Unit Quantity/Value 1. Quantity dispatched (Fe 59.11% basis and moisture 5.67% WMT 34000.00 2. Quantity short shipped as per short shipment notice da....