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2025 (11) TMI 1574
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....PER: A.K. JYOTISHI : In all these appeals, different appellants/exporters, who were engaged in the export of iron ore, have come in appeal either in respect of rejection of their refund claims in full or part on finalization of provisional assessment or in view of demand made for payment of additional duty as a consequence to finalization. Since most of these appellants have common issue and even the learned Advocates appearing for them have common arguments, we propose to take up these appeals together, as under: (A) M/s Arihant Tiles & Marbles Pvt Ltd - Appeal Nos. C/25590-25592, 25658, 25668/2013 & C/22068/2015 :- 2. M/s Arihant Tiles & Marbles Pvt Ltd (hereinafter referred to as Appellants) have come in appeal against the order of Commissioner (Appeals) upholding the decision of Original Authority. The department has also come in appeal against setting aside of the Order of the Original Authority by the Commissioner (Appeals) in 3 appeals viz., C/2559025592/2013. 3. The Appellants are in appeal (i.e., C/25658 & 25668/2013) on the grounds that the department has reclassified smaller quantity of Iron Ore fines as Iron Ore lumps under tariff item 2601 11 10 on the grou....
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.... in the case of CC (Port), Kolkata Vs Sesa Goa Ltd [2014 (307) ELT 385 (Tri-Kolkata)]. 5. Insofar as the departmental appeals are concerned, where the department has come against the rejection of redetermined transaction value based on contemporaneous exports, learned Advocates' main submission is that the transaction value declared in terms of section 14 of the Customs Act, 1962 cannot be disregarded in the absence of any evidence doubting the genuineness of the transaction. Therefore, the assessing officer is required to accept the price declared by the exporter and only when the transaction value is to be rejected based on import of identical goods or similar goods at higher price at around same time, it would be necessary for the assessing officer to give reasons or demonstrate as to why the declared transaction value was being rejected. No such reasons were given by assessing officer before rejecting transaction value and redetermining the value in terms of Valuation Rules. They have relied on the following judgments: a) Daksh Minerals Vs CCT [2024 (5) TMI 1155 - CESTAT Hyd] b) Atha Mines, Khatau Narbheram & Co. Vs CC, Visakhapatnam [Final Order No. A/3024....
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....ppeals), whereby, the Commissioner (Appeals) has set aside the Order of the Original Authority redetermining the export value while computing the refund amount admissible consequent upon finalization of shipping bills. While doing so, the Original Authority has taken the value as 180 USD PDMT, as against declared rate of 165 USD PDMT. (B) Essel Mining & Industries Ltd - Appeal Nos. C/22100, 22101 & 22256/2014 & C/30378 & 30379/2016:- 10. In these appeals also, learned Advocates have reiterated the submissions made in the case of M/s Arihant Tiles & Marbles Pvt Ltd, as above. Additionally, in these appeals, the issue of determination of FOB value on cum-duty or otherwise is also involved. They have fairly conceded that the issue is now no longer unsettled and has been decided in the following judgments and they are not contesting the same, as such. a) M/s Sesa Goa Ltd Vs CCE, C & ST, Bhubhaneswar [2014 (4) TMI 658 - CESTAT Kolkata] b) Mahalakshmi and Company Vs CC, Visakhapatnam - CUS [Final Order No. A/30318/2025 dt.21.08.2025] 11. Further, in Appeal No. C/22101/2014, apart from the issues involved, as cited supra, there is issue of wrong application of r....
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....e Customs Valuation (Determination of Value of Export Goods) Rules, 2007. However, where the test report show a variation, so as to impinge upon the price, the proper officer is required to redtermine the value of goods in terms of Customs Valuation (Determination of Value of Export Goods) Rules, 2007. 16. Heard both sides and perused the records. 17. Before we proceed to decide the issues involved, we find that some of the admitted positions, common to all the appeals, are that the exporters had declared certain prices on per MT basis at the time of export and subsequently, they filed the final invoice along With BRC for finalization of shipping bills. Based on the documents furnished by the appellants/exporters, the department finalized the SBs and as a consequence, granted them refunds either in view of excess payment made at the time of export in respect of provisionally assessed shipping bills or demanded/adjusted duty short paid. The appellants are aggrieved that the said calculation of refunds or demand is based on wrong redetermination of value of export. We find that this wrong calculation of refund amount consequent upon finalization of shipping bills is arising out....
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....umps has to be treated as Iron Ore fines only and cannot be artificially segregated into Iron Ore fines and lumps for the purpose of levying of export duty. Therefore, the demand confirmed and upheld by the Commissioner (Appeals) is not sustainable on this ground. In so far as redetermination of value is concerned, while the department has argued that exporter has not contested the same, the learned Advocate has contested that lower authorities have disregarded the transaction value or the price of Iron Ore exported as is evident from the invoices and corroborated by bank realization certificate dt.07.02.2011. They have also relied on certain Board Circulars viz., No. 18/2008-CUS dt.11.10.2008 and No. 37/2007 dt.09.10.2007, which have clarified that transaction value is the primary basis for valuation of export goods and the method specified under Rule 3 will be applicable. Only in the case where transaction value is not accepted, the valuation of export goods shall be done by application of Rule 4 to Rule 6. They have also relied on the judgment in the case of CC (Exports), Goa vs VGM Exports [2013 (291) ELT 572 (Tri-Mum)], wherein it has been held that the price realized by them ....
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....amount of iron ore lump, which we have already said is not correct." 19. Therefore, we hold that there cannot be an applicability of higher rate of duty by treating exported Iron Ore fines as Iron Ore lumps in the given factual matrix of the case. 20. Insofar as the issue (B) & (C) are concerned, we find that it is now settled position that wherever there is a contract, which provides for final determination of export value based on the Fe content as also moisture percentage, the Fe content and the moisture percentage determined at discharge port has to be taken into account based on which final invoice is issued and the amount is realized. In all these cases, there is a contract, which provides for determination of Fe content as well as moisture percentage at discharge port and also the final price to be worked out based on these two parameters including permissible tolerance and applicability of bonus/penalty etc. There is no dispute that the assessments were not kept provisional and neither exporter nor the department had considered the said declared price at the time of export as final price. There is also no dispute that the appellants/exporters have realized any amount ....
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....rt shows iron ore content above 60%. However, the adjudicating authority has ignored all the above 3 (three) test reports and finalized the assessment on the basis of discharge port test report and sanctioned refund of Rs. 1,73,55,343/- to the exporter which is erroneous, against the weight of evidences available on record 3 and contrary to the guidelines issued by the CBEC, vide Circular No. 12/2014-Cus dated 17.11.2014 read With Section 14 of the Customs Act, 1962 and the Customs Valuation (Determination of Value of Export Goods) Rules, 2007. Even if all the test reports are taken into consideration, three out of four test reports indicated more than 60% Fe content. Therefore, for the reasons indicated above, the final assessment order passed by the Deputy Commissioner, Customs Division, Paradeep is not legal and proper and contrary to principles of law, circular issued by the CBEC." 9.1. It is a fact that duty is to be paid on the Fe content ascertained as per the Discharge Port report. Admittedly, the ld. adjudicating authority, while passing the Final Assessment Order dated 07.10.2021, found that the Discharge Port Report showed the Fe content of 58.17 % and that the ....
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....rmity in the impugned order. The appeal of department therefore requires to be dismissed, which we hereby do." 21. We also find that similar view has been taken by the Tribunal in the case of Bonai Industrial Co. Pvt Ltd, Rungta Mines, Feegrade & Co. Pvt Ltd & Others Vs CC, Visakhapatnam (supra) as well as Vibhutigudda Mines Vs CC [2025 (5) TMI 171 - CESTAT Hyd]. 22. Insofar as issue (D) is concerned, we find that the matter is no longer res integra as the transaction value w.e.f. 01.01.2009 has to be the FOB price and no cum-duty benefit is admissible for computing the value for payment of export duty. This view has been upheld by the Tribunal in the case of CC (Port), Kolkata Vs Sesa Goa Ltd (supra) and Mahalakshmi & Co Vs CC, Visakhapatnam [2025 (8) TMI 1306 - CESTAT Hyd] where similar view has been taken. Thus, to this extent, appeal cannot sustain. 23. In view of the factual matrix of each case, the issues involved, arguments made by the learned Advocate, submissions made by the department and various case laws cited by both sides, we give our findings, as under: a) Export consignments having mixture of certain percentage of Iron Ore lumps With predominantly ....