TaxTMI 
TaxTMI 
2024 (8) TMI 1525
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....rent overseas buyers from 2 different ports, namely, Haldia and Paradip. The details of the 13 Shipping Bills filed by the respondent have been encapsulated in the table hereunder Table No. 1 Sl. No. Ref No. Vessel Shipping Bill No. and date WMT (Quantity) Name of the Overseas Buyer Customs Duty Paid by the Appellant (Rs.) Differential Duty Demanded by the Department (Rs.) 1 1A MV Anarita 4403750 27.02.2017 13850 Trios Corporation Limited, Singapore 1,51,71,899 4,97,62,334 2 1B MV Anarita 4404046 27.02.2017 42783 0 3 2A AP Drzic 4951641 24.03.2017 11860 Global Minore Pte. Limited 1,37,23,562 4,24,47,654 4 2B AP Drzic 4951639 24.03.2017 40300 0 5 3A Pacific Pride 5932026 08.05.2017 7700 Bagadiya Brothers Singapore Pte. Limited 56,42,580 87,50,786 6 3B Pacific Pride 5932766 08.05.2017 2684 0 7 3C Pacific Pride 5932571 08.05.2017 9616 0 8 3D Pacific Pride 6005016 11.05.2017 18850 1,51,09,618 1,23,16,625 9 3E Pacific Pride 6001201 11.05.2017 19700 0 10 4A Jewel of Shinas....
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....ation of IOF, the Fe content is to be determined on the WMT Basis. 2.3. Despite sustaining the allegation of having split a single consignment into multiple shipping bills the demand for differential customs duty with respect to the 5 consignments was dropped by the Ld. Adjudicating Authority vide two Orders-In-Original bearing Nos 02/Commissioner/2024 dated 08 January 2024 and 03/Commissioner/2024 dated 18 January 2024 on the premise that the Fe Content of the aggregate/consolidated consignments exported through a single vessel was less than 58% on WMT basis after a thread bare analysis of the legal position concerning the subject issue. The Fe Content on the WMT Basis of the aggregate/consolidated consignment was computed as follows: Table No. 2 Consignment No. Table No. 1 Vessel Name WMT (Quantity) Fe Content on WMT Basis (percentage) Sl. No. Ref. No. 1 1,2 1A+1B MV Anarita 56633 54.79 2 3,4 2A+2B AP Drzic 51960 54.35 3 5,6,7,8,9 3A+3B+3C+3D+3E MV Pacific Pride 58550 56.53 4 10,11 5A+5B Jewel of Shinas 53139 56.02 5 12,13 6A+6B MV St. Cergue 59600 54.94 Further....
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....g Authority held that export duty was rightly paid on one of the shipping bills bearing no. 6005016 dated 11 May 2017 as the Fe content with respect to the said shipping bill when viewed on an isolated basis was more than 58% under the WMT test conditions. In this regard, the Appellant would like to submit that when the learned adjudicating authority has sustained the allegation in the Notices that a single consignment exported by a single vessel was being artificially split into multiple shipping bills and dropped the entire demand for differential duty on the premise that the Fe content of each of the 5 consignments exported through 5 vessels on a consolidated basis was less than 58% it could not have rendered an in-consistent and extraneous finding as regards the correctness of the duty paid with respect to shipping bill no. 6005016 dated 11 May 2017 on an isolated basis. " 6. The Respondent relied on the decision of this Tribunal in the case of M/s. Global Associates Vs. Commissioner of Customs (Preventive), Bhubaneshwar in Customs Appeal Bearing No. 75107 of 2020 vide final order no. 75227523/2022 dated 11th March, 2024. To say that the Fe content on WMT treating the whole ....
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....(Port ) Calcutta & Commissioner of Customs of Bhubaneshwar reported in 2023 [9], wherein this Tribunal observed as under: "Per P.K. Choudhary : The issue in dispute in both the appeals is common. Hence, both the appeals are taken up together for hearing and disposal. 2. Appeal No. C/75008/2021 has been filed against Order-in-Appeal No. KOL/CUS(PORT)/AKR/582/2020 dated 17.09.2020 passed by the Commissioner of Customs (Appeals), Kolkata and Appeal No. C/75450/2023 has been filed against Order-in-Appeal No. 57- 58/CUS/CCP/2020 dated 31.12.2020 passed by Commissioner(Appeals), GST, CX and Customs, Bhubaneswar. 3. The facts of the case in brief are that the Commissioner of Customs (Appeals), Kolkata upheld the Order of Finalisation of Assessment of S/B No. 5114893 Dated 30.03.2017 by the Joint Commissioner of Customs(Export), Custom House, Kolkata, inter alia, on the following grounds : i) Load Port Test Report issued by Inspectorate Griffith India Pvt. Ltd. was adopted, discarding Test Report of Custom House Laboratory (CHLR) on the ground that it does not show impurities percentage which is vital for assessment and that various appellate authorities....
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....he weight of all impurities (inclusive of moisture) out of the total weight/Gross Weight to arrive at Net Fe contents. 9.1 The rate of duty was being fixed, then and also now, on the basis of percentage of iron(Fe) in the ore. The higher is the percentage, more the rate of duty. In WMT the percentage of iron is taken from the material as it has been presented for exports, which contain all types of impurities - Moisture, Sulphur, Phosphorus, Aluminium trioxide etc. The percentage of impurities is substantial. If the percentage of Fe is taken after deducting all quantity of impurities, percentage of Fe will be lower. Therefore, the rate of duty will be lower. The Supreme Court directed that "the percentage of Fe will be taken out of total material presented for export after deducting all the impurities including moisture. 1. This has been followed in the following judicial pronouncements : i) SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD.- 1987 (30) E.L.T. 686 (Goa High Court) [Para 7] where similar view was taken as under : "The iron contents in the moist iron ore which was exported ought to have been calculated following the well-recognised ....
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....tent for the purpose of classification/rate of duty applicable. 9.3 It would not be out of place to mention here that the ld. Commissioner of Customs, Mangalore in Para 22 of his Order-In-Original No. 02/2010 under C. No. VIII/10/22/2009/Adjn dated 28.3.2010, has recorded as follows : "22. To resolve the issue relating to the moisture content in the sample in lieu of the various judicial pronouncements and to retain the relevance of the test report given by the Chemical Examiner, Custom House, Cochin this office had earlier written to the Central Revenue Control Lab, New Delhi who has opined vide his letter dated 22.01.2009 that the iron content in samples in received basis can be calculated from iron content on dry basis if the moisture content in the samples as received basis is known: 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. This method although not the best, was temporarily adopted by the department in previous orders on similar matters so as to meet the requirements of various judicial pronouncements." [we are attac....
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.... the products of CTH 2601, the percentage of Fe (iron) content wherever specified, shall be calculated on the „Dry Metric Ton‟ (DMT) basis to be effective from 01.05.2022. Hence, according to the petitioners there could not have been any adoption of the DMT method in respect of any assessment for the period prior to 1st May 2022. 63. In the light of the above discussion, Court ordered the petition is partly allowed in terms of the following directions : "I. Insofar as the assessments in relation to the period prior to 1st May 2022 are concerned, they shall be governed by the principles of law in regard to the classification as laid down by the Supreme Court in Union of India vs. Gangadhar Narsingdas Aggarwal (supra), as clarified by the communication dated 17 February 2012, of the Tariff unit of the Ministry of Finance Department of Revenue (CBEC) Customs-IV Division. II. The GA Circular No. 2/2019 dated 12/15 April 2019, being not issued under Section 151-A of the Customs Act, same cannot form the basis of any assessment. III. In view of our above conclusion, we set aside the impugned orders-in-original dated 17 March 2022 and 13 Mar....
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....take note on that only 5 consignments are there and if Fe content is to be calculated on WMT basis the Fe content is less than 58%. These facts are not in dispute. 18. This issue in the case of M/s. Global Associates Vs. Commissioner of Customs (Preventive), Bhubaneshwar wherein this Tribunal has observed as under: "10. We find that in this case, the allegation against the appellant is that the appellant has artificially splitted one consignment in three Shipping Bills with an intention to evade payment of Customs duty by declaring that one Shipping Bill is having Fe content less than 58% and other Shipping Bills are having Fe content more than 58%, it is held that it is only one consignment. 11. Contention of the Ld. adjudicating authority and the Fe content as per DMT works out to 62.47%, which is more than 58%, therefore, the appellant is liable to pay duty on whole of the consignment @ 30% and differential duty was demanded. If the contention of the ld. adjudicating authority is considered and found to be correct, i.e. it is only one consignment. The Fe content is to be calculated based Wet MT and Dry MT as held by this Tribunal in the case of Jindal Steel ....
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....y applied the Formula and determined the Fe content on WMT basis. Thus, we find no infirmity in the determination of Fe content by the adjudicating authority. 17. Hon'ble Supreme Court in Union of India Gangadhar Narsingdas Aggarwal V. [1997 (89) E.L.T. 19 (S.C.)], wherein the judgment of the Hon'ble Bombay High Court in the case of Union of India &Ors. v. Gangadhar Narsingdas Agrawal &Anr. [1988 (33) E.L.T. 673 (Bom.)] was upheld. The Hon'ble Bombay High Court in its judgment had observed as under: "3. Before going into the contentions of Mr. Rege, learned Counsel for the appellants, it must be noticed that there is no dispute that the lumpy iron ore and iron ore fines exported by the petitioners was in a moist condition at the time when it was exported. Thus, what the petitioners exported was moist lumpy iron ore and moist iron ore fines. 4. It is also undisputed that the rate of customs duty has to be calculated on the basis of the goods being in such condition as they were in at the time of export, Thus, it is an undisputed position that the claim for partial exemption from customs duty made by the petitioners the present case has to be de....
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....rding 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." 19. Thus, By following the decisions and Board Circular cited above, we hold that Fe content is to be determined on Wet Metric Ton basis. We observe that the adjudicating authority has rightly followed the decision of the Hon'ble Supreme Court and the Circular issued by Board on this issue and dropped the proceedings. Accordingly, we find no infirmity in the impugned order passed by the adjudicating authority dropping the proceedings. 20. In view of the above discussion, we uphold the impugned order and reject the appeal filed by the Appellant (Department)." 12. We find that if we take the contention of the department as correct that the appellant has artificially splitted one consignment into three Shipping Bills, in that case, the calculation to arrive at Fe cont....