TaxTMI 
TaxTMI 
2025 (2) TMI 1292
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....t is less than 62%. The appellants at the time of clearance, have indicated the DMT as 63.5% with moisture content of 9%, which would be less than 62%, requiring to pay export duty of Rs.50 PMT. But in order to avoid delay in exports, they have paid Export Duty @ 300 PMT. On 18.05.2009 [acknowledged on 05.06.2009], they have submitted their separate letters for each of these Shipping Bills citing there with the relevant Supreme Court's order and enclosing therewith the Load Port Test Report from the accredited Testing Agency, requesting the Customs officials to Finalize the provisionally assessed Shipping Bills. One sample is produced below- Letter submitted for S/Bill No.-000136 dated-19.05.2007 Vessel- MV Bars 3. After this stage, it is found that the case had a long history, with no order finalizing the assessment being passed, in spite of Personal Hearing conducted and submissions made thereon 27.01.2010, 05.02.2010 and 15.02.2010. Getting no proper response for the regular follow-ups made with all the authorities, the Appellant was forced to file Writ Petition No. 12837/2014 on 15.07.2014, seeking the High Court's intervention to pass the Finalization Orders. In th....
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....wal in 1997 (89) ELT 19 (SC) 26.10.2009 5 15.12.2009 The Deputy Commissioner of Customs, Custom House, Paradip Submission made to Dy Comm., Paradip as requested during meeting held on 14.12.2009 with. 15.12.2009 6 27.01.2010 Shri. R.K. Samal, Superintendent, Custom House, Paradip Personal hearing attended and requested for passing order for rectification u/s Section 154 of Customs Act, 1962 for correction of error arising from omission to apply law laid down by the Hon'ble Supreme Court 29.01.2010 7 05.02.2010 The Deputy Commissioner of Customs, Custom House, Paradip Personal hearing attended and requested for rectification u/s Section 154 of Customs Act, 1962 for correction of error arising from omission to apply law laid down by the Hon'ble Supreme Court 08.02.2010 8 15.02.2010 The Deputy Commissioner of Customs, Paradip Written submissions filed for PH attended 22.02.2010 9 30.03.2010 The Chief Commissioner, Bhubaneshwar Request for suitable directions for expeditious disposal of above request. 30.03.2010 10 05.02.2014 The Asst. Commissioner of Customs, Custom House, Paradip CC to C....
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.... Final Order No. 11 Hon'ble High Court of Orissa has issued final order directing Dept to issue Assessment Order and deliver by 06.02.2023 02-01-2023 23 05/01/2023 Dy. Comm. Paradeep / Commissioner of Customs, Bhubaneshwar Request for implementing directions of Hon'ble High Court of Orissa for issuing Assessment Orders of 14 Shipping Bills 05/01/2023 24 06.02.2023 Dy. Comm. Paradeep to Vedanta Supplied Final Assessment orders of 12 S/Bills, Balance 2 are yet to be delivered 06.02.2023 25 07/02/2023 Commissioner Appeals Submissions of 12 Appeals against supplied Assessment Orders 07/02/2023 26 10/02/2023 Dy. Comm. Paradeep / Commissioner of Customs, Bhubaneshwar Reminder to supply Balance two Assessment Orders 10/02/2023 27 01/03/2023 Dy. Comm. Paradeep / Commissioner of Customs, Bhubaneshwar Receipt of communication that the Balance two S/Bills No. 00266/IOF/07-08 dated 22.06.2007, 000606/IOF/07-08 dated 05.10.2007 were also finalized by levying Expenses Duty @Rs. 300/- Per WMT 28 17/02/2023 Commissioner Appeals Submissions of Balance 2 Appeals for non-supply of Bal 2 Assessment Ord....
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....iled by the Revenue before the Hon'ble High Court, they claimed that the Final Assessments in respect of 14 Shipping Bills were completed in 2007 and 2008 itself. Vide Annexure A - Page 13 of their Counter Affidavit, the Revenue filed the assessment details of 14 Shipping Bills, which is being reproduced below : 7. Vide Order No.11 dated 02.01.2023, the Hon'ble High Court of Orissa ordered the Revenue to provide the Assessment Orders by 06.02.2023. The Revenue provided 12 Assessment Orders on 06.02.2023 and in respect of Two Shipping Bills - S/Bills No. 00266/IOF/07-08 dated 22.06.2007, 000606/IOF/07-08 dated 05.10.2007, the Revenue on 1.3.2023 sent a letter stating they are not in a position to locate the Assessment orders but confirmed that the finalization was done taking the Export duty payable @ Rs.300 PMT. 8. Being aggrieved by the fact that the Finalization was done taking the Export Duty @ Rs.300 PMT, in spite of all the documentary evidence like Test Reports, Invoices on the overseas party, Bank Realization Statements instead of finalizing the Export Duty @ Rs.50 PMT, the appellants filed their Appeal before the Commissioner (Appeals). 9. The Commissioner (Appeals....
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.... Fe contents in exported iron ore fines so that applicable export duty on the exported iron ore fines can be determined. For the purpose of levy of Export duty, the Fe content in the exported iron ore fines are to be calculated by including the moisture weight to arrive at natural or WET weight. 58. Similar issue was before the Commissioner of Customs, Mangalore, in case of M/s Dream Logistics Co India Pvt Ltd., vide OIO No. 04/2010(Commr) dated 28.04.2010, F.No. C.No. VIII/10/14/2009/Adjn. In the said case, the adjudicating authority, in Para 22, has relied upon opinion dated 22.01.2009 of Central Revenue Control Lab, New Delhi as per which iron content in samples as 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 Where Fe is %age of Iron content on dry basis M is the moisture content in the Sample. The above said OIO No. 4/2010 dated 28.04.2010 has also been accepted by the Committee of Chief Commissioner on dated 16.07.2010 vide File No VIII/48/89/2010 CCU as per letter C. No. VIII/10/14/2009 Cus adjn dated 07.04.2014 of Dy. C....
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....ar Pioneer 61% 0.40% 60.76% 63.66% 7.87% 58.65% NA NA NA 60. The Fe contents in WET conditions have been derived with the help of mathematical formula mentioned in para no 57. 61. The final invoices have been issued by the Appellants, based on the certificate of weight and certificate of analysis at the load port or discharging port as per agreed terms and conditioned, mentioned in the agreement with buyer in relevant Clause. 62. It is found that the Appellants has raised the Final Invoice based on Fe contents as Analysis Report at Load port / discharged port, as per terms of agreement. The details of Fe contents of Final Invoices of all 14 S/Bills are as below - S. No. S/ Bill No S/ Bill Date Vessel Name Fe % on Dry Basis Moisture % Fe% WET Basis 1 000136 19.05.2007 Bars 64.30% 5.87% 60.53% 2 000137 19.05.2007 Long Guan 64.13% 5.72% 60.46% 3 000266 22.06.2007 Shen Nong Feng 63.98% 8.25% 58.70% 4 000311 14.07.2007 Antwerp Ace 63.83% 6.54% 59.66% 5 000427 07.08.2007 Rea 63.79% 8.79% 58.18% 6 000474 ....
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.... The Custom Houses shall monitor receipt of Bank Realisation Certificates for the purposes of comparison with the final invoices submitted by the exporter to satisfy the accuracy of assessed values. 65. It is observed that there is not much difference in Test Reports of Load Port and Discharge Port and the export proceed has been received as per Test results of Load Port or Discharge Port, as per agreed terms mentioned in contract. In such case it justified to accept and conclude that Fe contents in exported Iron Ore Fines under all subjected 14 S/Bills, for which 14 Appeals have been filed, were below 62%, in WET Condition, in all the situations and documents, like S/Bills (provisional Fe Contents), Customs Final Test Report, Final Test Report issued by Govt. recognised assayer at Load Port, discharge port Test Report, Final Invoice and CA Certificates issued by an Independent Chartered Accountant. It has been observed that in Appellants own case, already CESTAT Bangalore and CESTAT Kolkata have either concluded the eligibilities of getting concessional rate export duty @Rs. 50/- PMT basis Hon'ble Supreme Court order and Department has allowed refunds, the same a....
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....ithin three months from the date of assessment, of duty finally or re-assessment of duty, as the case may be, there shall be paid an interest on such un-refunded amount at such rate fixed by the Central Government under section 27A till the date of refund of such amount. As the Customs law permit the interest only in the case, if the refunds have not been paid with in a period of 3 months. The interest on delayed refunds can be allowed once the refunds are concluded by order. As in all 14 S/Bills there is no such order exist till now, interest under Section 18(4) cannot be allowed in account of delay in Final Assessment. 10. The Ld. Consultant submits that the above chronological details would clarify that though all the necessary documents towards the finalization was available with the Dept. by way of the letter dated 18.05.2009 [submitted on 5.6.2009], the Dept. has kept the matters pending for many years even after holding Personal Hearings on 05.02.2010 and 15.02.2010. Before the Hon'ble High Court the Revenue vide their Counter Affidavit claimed that the Assessments were finalized in 2007 - 2008 itself and also showed the details of the CRCL's Test Report pertaini....
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.... CRCL's Report, cannot be used by the Revenue to deny the interest claim of the appellant for all these years. Had he adopted Rs.50 PMT as Export Duty in 2007 - 08, the appellant would have received the refund of the balance Rs.250 PMT immediately. Secondly, nowhere has the Revenue brought in any evidence to the effect that the Assessment orders were communicated to the appellant. They were given, in February 2023, that too on account of the Hon'ble High Court's direction. All these facts would make it clear the appellant has been made to suffer for more than 14 years due to the erroneous and deliberate actions of the Dept. Hence, it is prayed that the interest may be paid for the intervening period of delay. 12. The Ld. Chartered Accountant also draws our attention to the fact that recently, in their own case, in respect of two Shipping Bills No.1121 dated 29.02.2008 and 1233 dated 26.03.2008, which were also Originally part of the Writ Petition No. 12837/2014 and are at Sl No.15 and 16 of the Annexure A to the Affidavit filed by the Revenue before the High Court, the issue was before this Bench. Vide Final Order No. 75019/2025 dated 07.01.2025, this Bench had held as under: ....
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....e eligible to interest, what would be the relevant date of interest? In the present case, the Finalization should have been completed by 14.08.2010, i.e within six months from the date of having all the documents submitted in the course of Personal Hearing. This date is taken as the date of filing of the refund claim. After allowing the 3 months from 14.08.2010, the interest would be payable from 14.11.2010. (c) If the interest is payable what would be the rate of interest to be paid? Relying on the Riba, Parle and Churchit case laws discussed, we hold that the interest is payable @ 12 p.a. (d) Since the issue has been lingering for more than a decade, we direct that the interest should be paid within 8 weeks from the date of communication of this order. 59. The appeal is allowed as per the above terms. 13. In view of the above submissions, relying on the above Final Order in their own case, he prays the present Appeals may be allowed holding that the interest @ 12% per annum may please be held as payable from date of finalization of the assessment as claimed by the Revenue, i.e. in 2007-2008, which was erroneously / deliberately fina....
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....ffect before the Hon'ble Orissa High Court to this effect, which is already reproduced in the earlier paragraphs. On going through this Table, we find that the CRCL's Report was available with the Revenue before the date on which the Assessment was finalized. We also find that the Test Reports of CRCL clearly state that the Fe Content in all the 14 Shipping Bills are less than 62%. The following Table clarifies the issue: S. No. Shipping Bill No. & Date Fe content as per Pre-shipment analysis submitted by the exporter Fe content as per Customs House Laboratory report on Dry basis Date of Final Assessment CRCL Report Date 1 137/19-05-2007 63.50% 60.70% 25-08-2007 12-07-2007 2 136/19-05-2007 63.50% 55.00% 24-08-2007 18-06-2007 3 266/22-06-2007 63.50% 59.90% 09-10-2007 26-07-2007 4 311/04-07-2007 63.50% 59.40% 28-08-2007 13-08-2007 5 427/07-08-2007 63.50% 60.90% 15-10-2007 30-08-2007 6 474/28-08-2007 63.50% 60.10% 09-04-2007 09-10-2007 7 510/10-09-2007 63.50% 60.10% 11-01-2008 15-10-2007 8 561/25-09-2007 63.50% 60.20% 12-12-2007....
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....d by the Revenue themselves. Secondly, even after continuous follow up from the appellant as can be seen from the chronological Sequence of Events given in the earlier paragraphs, as to why even while the Personal Hearings were being conducted, the appellant was not made aware that the Finalization was already done, is not known. After the Personal Hearing, for the next 4 years there was no action taken by the Revenue. The matter had to be taken up before the Hon'ble High Court of Orissa by the appellant and after about 8 years, the High Court directed the Revenue to provide all the Assessment Orders. Finally, it has taken the Commissioner (Appeals) to go through all the documents like export invoices, Test Reports at Load Port, Discharge Port, CRCL's Report, Bank Realization statement etc., to come to a conclusion that Export duty was payable @ Rs.50 PMT and not at Rs.300 PMT. We do not subscribe to the view that this was the Order based on which the refund was to be given. The Assessing Officer in 2007 - 2008 was duty bound to follow the statutory provisions to apply Rs.50 PMT as the Export Duty based on the CRCL Test Reports confirming that in all the 14 cases the Fe contents wa....
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....07 3 Month from the date given at Col F 6 474/ 28.08.07 Good Light 63.50% 60.10% 09.04.2007 09.10.2007 3 Month from the date given at Col F 7 510/ 10.09.07 C Duckling 63.50% 60.10% 11.01.2008 15.10.2007 3 Month from the date given at Col F 8 561/ 25.09.07 Ikan Serong 63.50% 60.20% 12.12.2007 25.09.2007 3 Month from the date given at Col F 9 606/ 05.10.07 Alba 63.50% 61.70% 14.01.2008 12.10.2007 3 Month from the date given at Col F 10 785/ 27.11.07 Prabhu Jivesh 63.50% 59.30% 07.03.2008 30.01.2008 3 Month from the date given at Col F 11 787/ 28.11.07 Five Stars Eternal 63.50% 61.00% 07.03.2008 13.02.2008 3 Month from the date given at Col F 12 849/ 19.12.07 Good Purpose 63.50% 59.70% 24.03.2008 15.02.2008 3 Month from the date given at Col F 13 852/ 22.12.07 Prabhu Daya 63.50% 60.00% 07.03.2008 07.02.2008 3 Month from the date given at Col F 14 1057/ 14.02.08 Five Star Pioneer 63.50% 61.00% Finalised 05.03.2008 3 Month from the date given at Col F 24. Other details....
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....A LIMITED Sesa Ghor, - 20 EDC Complex, Patto, Panjim, Goa 403 001 Tel : +91-832 2460600 Grm : SESAGOA To, May 18, 2009 The Deputy Commissioner of Customs, . Custom House, Paradip. Sir, Sub: Request for finalization of provisional assessment (PD assessment) and granting of consequential refund of customs duty paid in excess - regarding. You are aware that we have exported iron ore under the following Shipping Bill and paid export duty on the same. Shipping Bills No. 000136/IOF/2007-08 dated 19.05.2007, Duty paid Rs. 1,14,00,000/ -. At the time of assessment of the above Shipping Bills, assessment was made provisional as may be seen from the endorsement made in the Shipping Bills and as per instructions of the department appropriate PD Bond was also executed. The provisional assessment was necessary for the reasons that import was subject to restriction of Foreign Trade Policy as import of iron ore beyond certain percentage in Ferrous content was restricted, the duty on export of iron ore should not be charged on the weight of moisture content in the ore as per the following decisions 1) 1986 (26) ELT 918 in the case of Gangadhar Narsinghdas Agarwal V....
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....F TEST RESULT & FINAL ASSESSMENTS Shipping Bill No. & Date Fe content as per Pre-shipment analysis submitted by the exporter Fe content as per Customs House Laboratory report on Dry basis Date of Final Assessment 137/19-05-2007 63.5% 60.7% 25/08/2007 136/19-05-2007 63.5% 55.0% 24/08/2007 266/22-06-2007 63.5% 59.9% 09/10/2007 311/04-07-2007 63.5% 59.4% 28/08/2007 427/07-08-2007 63.5% 60.9% 15/10/2007 474/28-08-2007 63.5% 60.1% 09/04/2007 510/10-09-2007 63.5% 60.1% 11/01/2008 561/25-09-2007 63.5% 60.2% 12/12/2007 606/05-10-2007 63.5% 61.7% 14/01/2008 785/27-11-2007 63.5% 59.3% 07/03/2008 787/28-11-2007 63.5% 61.0% 07/03/2008 849/19-12-2007 63.5% 59.7% 24/03/2008 852/22-12-2007 63.5% 60.0% 07/03/2008 1057/14-02-2008 63.5% 61.0% Finalised 1121/29-02-2008 63.5% 63.7% 07/07/2014 1233/26-03-2008 63.5% 63.7% 07/07/2014 CERTITIES TO BE A TRULY COPY Que Sup - tendent Leguit Central Parks. customs Chub .noswww. - Document 3 Test Memo No, 078/07-08 at. 19.05.2007 Vessel Name - MV LONG GUAN The Sample is in the form of brown Collected imegeler lars il powdery material. It is essentially Compasso & oxides of 200 together with ....
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....LING The sample is in the form of lower coloured irregular jumps and pondery material. It is essentially composed of Oxide of, Iron together with associated other metalle oxices and silicious matter, Iron content is 60.1% by wt (on dry basis) which is equivalent to 5.57 by wt. Of combined Iron evaluated as Ferric Oxide (Fe203), Moisture content is 5-3/1) LAB NO 3357/26F-50SQ75-10-07 Document 10 Test Meno NO. 303/07-08 at, 25.09.2007 Vessel Name - MV IKAN SERONG The sample in the form of R brown coloured mixture of small lumps and powder. It is essentially composed of Oxide of Iron together with associated other metallic oxides and Siliceous matter. Total Iron content is 60.2 by. wt. (on dry basis) and Moisture content is 6.4 by wt. It has the characteristic of Iron ore concentrate. Its source/ origin may be verified. 3506/266-562- 04-259.47 Document 11 Test Meno No. 318/07-08 at. 05.10.2007 Vessel Name - MV ALBA The sample is in the form of R.B coloured irregular lumps and powce material. It is essentially composed of Oxide of Iron together with associated other metall oxides and silicious matter, Iron content is @1. 72 by wt (on dry basis) which is equiva....
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..... PARTICULARS OF IM EXPORT Name of the Exporter and address GOA LIMITED, SESA THOR, 20-EDComplex, Patto PANJIM, GOA, 403 001. Name and address of clearing agents : J.M.BAXI & CO .. 48. Thakur Lane. Parad - Name of the vessel IGM / EGM Rot No. & Line No. DT.26.11 2007 Shipping Bill No. MV. FIVE STARS ETERNAL EXP/546/2007 000787 /IOF/07-08 DT. 28 11.2007 larks and number of the nsignment. : NIL / IN BULK intry of Origin : ORISSA. INDIA SESA GOA' LIMITED IBER OF DESCRIPTION OF THE GOODS RESULT OF THE LES INCLUDING BRAND NAMES TEST IRON ORE FINES IN BULK FOTO. I and returned to the Asst. Commissioner on and the results are shown above 1 CHEMICAL The sample is in the form of mixture of small lumps and powder. It is essentially composed of Ch === together with associated other metallic oxides and Siliceous matter. Total Iron content is 61.0% by wt. (on dry basis) and Moisture content is 3.0% by wt. It has the characteristic of Iron ore concentrate. Its source/ origin may be verified. Sealed sumenant returned. NOTE : Particle size of the sample is within 10 mm, which conforms to the 'Fines' as defined in IS 1405-1982. Ao....