TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 1651
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.... an agreement with M/s. Concord Fortune Minerals Ltd., for export of 50,000 WMT of iron ore from Vizag port to one main port in China during October 2008. 25.09.2008 Shipping Bill No. 4406305 for export of 51000 MTs of Iron Ore at FOB Value of Rs.17,82,30,643/ -. 26.09.2008 Letter of Appellant intimating the Customs Authority regarding the export price and the details of the vessel arriving at the Vizag Port along with a copy of the Sales Contract and Letter of Credit. 1.10.2008 Shipping Bill No. 4406474 for export of 3098 Mts of Iron Ore at FOB Value of Rs.1,15,54,268/ -. 24.11.2008 The Appellant filed an Appeal before the Commissioner (Appeals) challenging the Shipping Bill No. 4406305 dated 25.09.2008 in terms of Board Circular No. 18/2008-Cus dated 10.11.2008 where clarification was provided for computation of export duty by taking FOB price as cum duty price. 04.05.2009 Order-In-Appeal No.54/2009(VCH) directing to consider FOB price as cum duty price and to re-assess the shipping bills. 27.05.2009 Letter of the Appellant requesting refund of export duty of Rs.35,49,029/- pursuant to the OIA No.54/2009(VCH) dated 04.05.2009. 27.08.2010 Without sanctioning the refu....
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....ount received by the Appellant for the exports ought to have been accepted as the declared value in terms of Section 14 of the Customs Act, read with Rule 3(1) of the Valuation Rules. In this regard reliance is placed on the following decisions: (a) BTM Exports Ltd. v. CC & ST, Visakhapatnam-Cus, 2017 (11) TMI 1530 - CESTAT HYDERABAD (b) Commissioner of Customs, Visakhapatnam Vs. Rashmi Metaliks Ltd. [2016 (11) TMI 300 - CESTAT HYDERABAD 5.4 It is submitted that when the Appellant declared the value in terms of Sale Agreement entered mutually between the exporter and the foreign buyer and no additional payment was made to the Appellant, value declared in Shipping Bills could not be rejected. In this regard, reliance is placed on the following decisions: (a) Sanjivani Non-Ferrous Trading Pvt Ltd. vs. CCE, Noida [2017 (7) G.S.T.L. 82 (Tri. - All.)] affirmed by theSupreme Court in CCE & ST, Noida vs. Sanjivani Non-Ferrous Trading Pvt Ltd., 2019 (365) E.L.T. 3 (S.C.) 5.5 That until and unless there is cogent evidence that there is financial flow back by the foreign buyer, the transaction value cannot be rejected. In view of the submissions above, it is pertinent to note that, ....
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....n the basis that contemporaneous exports made by different exporters at or about same time, which is on a higher side. 9. We find that no case has been made out by the revenue of the receipt of any additional consideration/flow back of funds. 10. In the absence of any case made out by the revenue of additional consideration or otherwise, rejecting transaction value merely on the basis of higher value declared by other exporters, is not correct. 11. This issue has been considered by the CESTAT in the case of Sanjivani Non- Ferrous Trading Pvt Ltd. vs. CCE, Noida [2017 (7) G.S.T.L. 82 (Tri. - All.)] wherein it was held as under: "7. Having considered the rival contentions and on perusal of record, we find that the Original Authority was directed by the Hon'ble High Court to pass speaking order on the enhancement of assessable value. We find that the Original Authority in its Order-in-Original dated 25-3-2015 has passed comments on the grounds of writ petition and did not properly examine the evidence available with the department required to be examined for enhancement of assessable value. Further, we find that as held in the case laws stated above and as provided by Section....
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.... arrives at his own assessable value. 13. It is, therefore, rightly contended by Mr. Dushyant A. Dave, Learned Senior Counsel appearing for the respondent that the reason given for setting aside the order that the normal rule was that the assessable value has to be arrived at on the basis of the price which was actually paid, and that was mentioned in the Bills of Entry on shipping bills. The Tribunal has clearly mentioned that this declared price could be rejected only with cogent reasons by undertaking the exercise as to on what basis the Assessing Authority could hold that the paid price was not the sole consideration of the transaction value. Since there is no such exercise done by the Assessing Authority to reject the price declared in the Bills of Entry, Order-in-Original was, therefore, clearly erroneous." 13. Further CESTAT, Hyd in the case of BTM Exports Ltd. v. CC & ST, Visakhapatnam-Cus, 2017 (11) TMI 1530 - CESTAT HYDERABAD held as under: "5. It can be noticed from the impugned orders that both the Lower Authorities have incorrectly appreciated the law which is governing the valuation of the consignments of iron ore cleared for export is as per provisions of Sectio....