TaxTMI 
TaxTMI 
2024 (7) TMI 1080
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....ppellant paid export duty at the rate of Rs. 300/- PMT along with applicable cess as per the Customs Tariff Act, considering the "Fe" content of 63.22% on Dry Metric Ton (DMT) basis as per the load port analysis report and that the contractual agreement was also on DMT basis. 2.1 Thereafter, the appellant filed all the relevant documents before the Deputy Commissioner, Customs Division, Paradeep for finalisation of the shipping bills on the baisis of the decision of the Hon'ble Supreme Court in the case of Union of India v. Gangadhar Narsingdas Aggarwal [1997 (89) E.L.T. 19 (SC)] The appellant also cited Customs Circular No. 04/2012-Cus dated 17.02.2012, wherein it was directed to complete all pending assessment considering "Fe" content on Wet Metric Ton (WMT) basis. The appellant also referred to Notification No.62/2007-Customs dated 03.05.2007 wherein it has been notified that "Fe" content below 62% will attract customs duty at the rate of Rs. 50/- PMT. 2.2. In the impugned case, the load port analysis report showed "Fe" content as 63.22% on DMT basis. Accordingly, the appellant was of the view that the duty should have been charged on the basis of "Fe" content in the Iron ....
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....foregoing judgment, Board has issued Circular No. 04/2012-Cus dated 17.02.2012, wherein it was specifically provided that the net "Fe" content for the purpose of charging export duty is to be determined on WMT basis. 3.4. It is their submission that the method of determining Fe content on WMT basis is discussed by Hon'ble High Court of Bombay in the case of V.M. Salgaocar and Brother Pvt. Ltd v. The Assistant Commissioner of Customs (Export) [2022 (9) TMI 1306]. The Court mentioned that it is universally recognised and followed for determination of Iron content in natural iron ore fines. The appellant contends that the said methodology has also been accepted by the CESTAT, Kolkata and followed in the case of M/s. Bagadiya Brothers Private Limited (supra). 3.5. Accordingly, the appellant prayed for setting aside the impugned order and to allow their appeal. 4. The Ld. Authorized Representative appearing for the Revenue submits that in this case, the contractual agreement was on DMT basis and the "Fe" content on Dry Metric Ton (DMT) basis is 63.22% as per the load port analysis report. Accordingly, he submits that export duty was correctly charged @ Rs. 300/- per MT. 5. H....
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.... In pursuance of Order dated:20.09.2016 passed by the Hon'ble High Court of Orissa, Cuttack in W.P(C) No.23278 of 2015 filed by M/s Narbheram Vishram and further submission of final commercial invoice, discharge port analysis report (basis for final Invoice), Bank realization certificate towards consideration received by the exporter, Shipping Bill No-777/IOF/2007-08 dr:26.11.2007 & 778/1OF/2007-08 dt:26.11.2007 filed by M/s. Narbheram Vishram, through their CHA, M/s. B.G.Somadder & Sons Pvt. Ltd. Paradeep, for export of Iron ore fines are hereby assessed finally under Section 18(2) of the Customs Act, 1962 (details of which are given in the table below). During the Personal Hearing, held on 25.10.2016 in the matter, M/s. Narbheram Vishram has also contended and requested that their Shipping Bills may kindly be re-assessed/ finalised as per the order of Hon'ble Supreme Court in Union of India Vs Gangadhar Narsingdas Aggrwal and CBEC Circular No.4/2012- Cus dt:17.02.2012. In this regard, it is seen from the records that the Customs Duties appears to have been calculated correctly on the basis of Net Quantity and there appears to be no further requirement on....
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.... v. Gangadhar Narsingdas Aggarwal [1997 (89) E.L.T. 19 (SC)] and the Board Circular No. 04/2012-Cus dated 17.02.2012. Accordingly, we hold that the provisional assessment finalisation order mentioned supra is legally not sustainable. 6.4. We observe that the issue is no more res integra in the view of the decisions of the Tribunal, Kolkata in the case of M/s. Bagadiya Brothers Private Limited v. Commissioner of Customs (Port), Kolkata and Commissioner of Customs (Preventive), Bhubaneswar [2023 (9) TMI 827 - CESTAT, Kolkata] pronounced on 15 September 2023 wherein on a similar issue, this Tribunal has held that 'Fe' content is to be determined on WMT basis and duty has to be charged on such basis. The relevant paragraphs of the said decision are reproduced below: - "8. We find that the issue under dispute in these cases is whether for deciding the classification and rate of duty payable, the Fe %age of Iron Ore Fines is to be determined on Dry Metric Ton (DMT) basis or Wet Metric Ton (WMT) basis. 9. The issue stands decided as early as 1997 by Hon'ble Supreme Court in the case of Union of India Vs Gangadhar Narsingdas Aggarwal - 1997 (89) ELT 19(S.C.) an....
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....sa Goa Ltd. - 2014 (310) ELT915 (Tri.-Kol.) has observed[ Para 5] "On a plain reading of the said Notification, it is clear that the conditions, in which the goods are exported, become relevant in determining Fe content; for application of the said Notification". (No further Appeal). iv) The same issue was again agitated before the Tribunal, Hyderabad Bench in the case of General Nice Mineral Resources (I) P. Ltd. Versus C.C. Vijayawada- 2017 (352) E.L.T. 94 (Tri. - Hyd.). The court reiterated Para 3 of Board Circular No. 4/2012-Cus dated 17.2.2012 and held ".... 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"[.emphasis added] (No Appeal) v) This issue was also discussed and decided by the Tribunal in the case of Oblapuram Mining Company Pvt. Ltd. Vs CC Visakhapatnam - 2017-TIOL-1169 (CESTAT - Hyd.), where the party filed Appeals against two OIO and the department also filed Appeal against the same two OIOs. ....
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....ly focussed on the valuation of the Iron Ore Fines, which is not in dispute. Here, classification of Iron Ore Fines exported and how the Fe %age is to be determined (as the classification is based on Fe content), is the question which the Commissioner (Appeals) have not addressed in their Orders. Therefore, the Orders in Appeal are not legal, proper and correct. 9.7 Meanwhile, with effect from 1.5.2022, by a Supplementary Note to Chapter 26, inserted in Indian Customs Tariff, it has been stipulated that in relation to the products under the heading 2601 the percentage of Fe (Iron) content wherever specified shall be calculated on dry metric ton basis. 9.8 It means that, only after 1.5.2022 for determination of Tariff heading the Fe content shall be calculated on DMT basis. And prior to 1.5.2022, the calculation of Fe content shall be on WMT basis. 9.9 The Hon'ble High Court of Bombay at Goa in their Order in Writ Petition No. 216/2022 dated 23.09.2022 in the case of VM Salgaokar & others vrs Asst Commissioner of Customs(Export), Goa & others have very elaborately dealt with this issue. The relevant portions are at Para 14 as under :- "14. The pet....
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....ollowing orders : i) direct the assessing officers to determine Fe content on WMT basis by deducting the moisture given in the test reports of NABL accredited government approved Private Laboratory ; ii) convert the %age of Fe on DMT basis to %age of Fe on WMT basis by applying the universally recognised formula for determination of classification of IOF exported. The formula is :- Iron content = Fe x (100-M) / 100 (on as received basis) Where Fe is % age of iron content on dry basis, M is moisture content in the sample. iii) finalise the assessments accordingly. 11. Accordingly, the impugned orders are set aside and the appeals are allowed with consequential relief, if any, as per law." 6.5. Regarding the 'Fe' content in the iron ore exported on WMT basis, we observe that the appellant has submitted a Certificate issued by the authorized inspection agency, Visiontek Consultancy Services Pvt. Ltd, certifying that the iron ore content on WMT basis is 58.61%. For the sake of ready reference, the scanned copy of the said Certificate is reproduced below: 6.5.1. A perusal of the Certificate reproduced ....