TaxTMI 
TaxTMI 
2026 (1) TMI 1024
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....CX and Customs, Central Revenue Building, Rajaswa Vihar, Bhubaneswar-751007, Odisha, where the following question(s) of law for adjudication are suggested for formulation: "(i) Whether on the facts and circumstance of the case, the learned Tribunal is correct as per law and facts in dismissing the appeal filed by Department against the Order-in-Appeal No. 72/CUS/CCP/ 2023, dated 09.06.2023 passed by the Commissioner (Appeal), Bhubaneswar ignoring the errors in the said Order-in-Appeal dated 09.06.2023? (ii) Whether on the facts and circumstances of the case, the NABL Accredited Private Testing Agency's test report, where the test simple is not a representative one as it is solely drawn by the exporter themselves without the presence of Customs (which is meant for smooth business transactions between the buyer and seller as per the contract between them) can be accepted in this case for payment of Government duty, when the CRCL report, where the sample is drawn in the presence of both the Customs (Government) and the exporter/representatives of the exporter as per the guidelines issued under CBIC Circular No. 12/2014-Cus, dated 17.11.2014 is also available? ....
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....9089712, dated 03.03.2021 and No.9152539, dated 06.03.2021 indicating Iron Ore Fines of Indian Origin for export of 55,480 Wet Metric Tonne (for brevity, "WMT") and 355 WMT respectively per vessel, MV BEAUFORT. 2.2. Taking into consideration the pre-shipment analysis report of M/s. Mitra S.K. Private Ltd., Bhubaneswar, an NABL accredited testing agency,^1, (named hereinafter as "SKM"), customs duty was determined at "NIL" in the provisional assessment of these Shipping Bills, treating the Iron Ore Fines for export falling within the ambit of Customs Tariff Heading: 26011142 in terms of Entry Serial No. 20A vide Notification No. 27/2011-Cus, dated 01.03.2011. 2.3. Samples were drawn by the Customs Officer in presence of the exporter-Customs House Agent at the time of export vide Test Memo No. 170/20-21, dated 12.03.2021 and Test Memo No. 173/20-21, dated 16.03.2021 and sent for examination to the Central Revenues Control Laboratory, Kolkata (in short be called "CRCL")^2. Iron contents (popularly known as, "Fe content") of the subject Iron Ore Fines were found to be 60.9% and 59.1% respectively as per test results of CRCL. 2.4. While finalising the Shipping Bills, scrutiny o....
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.... the form and condition at the time of exportation, the SKM reports being based on such contemporaneous factors, the reports of the CRCL would not inspire confidence to accede to the determination made by the Assessing Officer. On the aforesaid analysis and observations, the Order-in-Original No. CUS/GCD/AC/118/SB/111, dated 08.10.2021 passed by the Assessing Officer was set aside and consequently, the appeal was allowed. 2.6. Assailing the observations and findings made in the Order-in-Appeal, dated 08.06.2023, the Commissioner of Customs (Preventive), Bhubaneswar Commissionerate, Central Revenue Building, Rajaswa Vihar approached the learned CESTAT by way of filing appeal under Section 129A of the Customs Act. The said appeal came to be disposed of vide Final Order dated 04.12.2024 with the observation that the appeal filed by the Revenue, being devoid of merit, is dismissed and, thereby upheld the Appellate Order. 2.7. Challenging the said order passed by the learned CESTAT, the Revenue preferred the present appeal under Section 130 of the Customs Act formulating the questions of law, as has already been extracted supra. Hearing: 3. On 18.12.2025 the matter was on....
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....f Customs Officers. Laying stress on the Circular No. 12/2014-Customs, dated 17.11.2014 issued by the Central Board of Customs and Excise, Department of Revenue, it is submitted that the reports of the CRCL, Kolkata is sacrosanct and the learned CESTAT proceeded on an erroneous perception by stemming heavily on the test reports of SKM. The finding of fact being contrary to aforesaid Circular dated 17.11.2014 even though the final invoice price was payable or paid on the basis of reports prepared by M/s. Mitra S.K. Private Limited, an NABL Accredited Private Laboratory, it is contended that substantial question of law does arise out of the order of the learned CESTAT. 5. Sri Rudra Prasad Kar, learned Senior Advocate appearing for the Respondent submitted that unless there is sufficient material to demonstrate that the sample drawn by the exporter and examined by SKM is not the same as that of the exported goods, the finding of fact cannot be impeached as perverse inviting indulgence of this Court in appeal under Section 130 of the Act. As there was no dispute before the Appellate Authority with respect to sample tested by the SKM nor was there any ground or material before the CE....
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.... 2021, i.e., prior to said amendment, the "Fe content" has seemly been appreciated by the Appellate Authority accepting the report of the SKM which calculated the "Fe content" on the basis of WMT". Since no factual infirmity could be attributed to the decision of the learned CESTAT, he submitted that no substantial question of law arises from the order of the CESTAT so as to show indulgence in the matter. 5.5. Winding up his argument, the learned Senior Advocate submitted that the contentions and submissions made on behalf of the appellant is basically attack on the fact finding based on position prior to amendment of the Customs Tariff Act, 1975, i.e., before enforcement of the Finance Act, 2022. Referring to Section 130 of the Customs Act, he made suave submission that this Court is invested with power to intervene in the matter only if "the case involves substantial question of law". Since the questions of law as posed by the Appellant do require interference with the facts settled by the Appellate Authority as also the CESTAT, which are not demonstrated by the Revenue to be perverse, no "substantial question of law" can be said to have arisen in this case. 5.6. Therefore,....
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....is of final invoice(s) prepared taking note of "Fe content" of Iron Ore Fines calculated at WMT. 7.5. In the case of State of Gujarat (Commissioner of Sales Tax, Ahmedabad) Vrs. Variety Body Builders, 1976 Supp. SCR 131 = (1976) 38 STC 176 (SC) it has been laid down as follows: "It is well-settled that when there is a written contract it will be necessary for the Court to find out therefrom the intention of the parties executing the particular contract. That intention has to be primarily gathered from the terms and condition which are agreed upon by the parties. We will, therefore, immediately turn our attention to the agreement in question." 7.6. Turning to the material fact as available in the Orders of the Authorities, it is found from the Order-in-Original that: "In the instant case the dutiability of Iron Ore Fines, exported by the exporter is determined by the percentage of Fe content of the subject Iron ore fines. Similarly, the price of the subject Iron Ore Fines is governed by the contract as agreed between exporter and buyer. As per the relevant Contract No. EMIL/INTLMKT/20-21/CML/21, dated 23.02.2021, value of the goods is to be determined on the ....
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.... than 58% and the foreign buyer did make payment on receipt of such exported Iron ore fines bearing less than 58% Fe content based on WMT basis, as per the norm prevailing at the relevant point of time. 8. Now turning to the point raised by the Appellant to examine the correctness of approach adopted by the Revenue, it is vehemently contended by the learned Senior Standing Counsel that application of customs duty would be on the quality of Iron Ore Fines based on Fe content calculated on DMT basis, but not the WMT basis, as held by the Appellate Authority and found to be correctly applied by the CESTAT. 8.1. The learned CESTAT proceeded to decide the issue "whether the export duty can be levied based on the test report of Chemical Examiner of the CRCL or not, when the final invoices/realised price is arrived at on the basis of the test report of a NABL Accredited Agency at load port or CIQ report at discharge port or any other formula, as per the terms and conditions of agreement between the buyer and seller?" 8.2. On analysis of evidence on record, the view of the Appellate Authority found favour with the CESTAT, being fortified by consistent view expressed by it in very ....
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....g that they had erroneously paid duty at a higher rate on the footing of the iron ore content of these goods being higher than was actually present in the goods exported by them in the natural condition or the moist condition in which they were exported. *** 3. Before going into the contentions of Mr. Rage, 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. 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 in the present case has to be determined on the footing of the goods exported being moist iron ore fines and moist lumpy iron ores. 4. Now, the only submission urged by Mr. Rege, learned Counsel for the appellants was that it is not possible by a physical analysis to determine the iron ore contents ....
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.... 1968 the Government exempted lumpy iron ore falling under Item 28 of the Second Schedule to the Tariff Act when exported out of India from so much of the duty as was in excess of the duty shown in Column (iii) depending on the iron content in the iron ore. It may here be mentioned that the duty had to be determined on the basis of weight of the commodity at the relevant point of time. It may here be mentioned that the duty had to be determined on the basis of weight of the commodity at the relevant point of time. In the case of lumpy iron ore where the percentage of iron was 60% or more but less than 63% the duty was restricted to Rs. 6/- per metric ton, where it was 58% or more but less than 60% it was restricted to Rs. 5/- per metric ton and where it was less than 58% it was restricted to Rs. 4/- per metric ton. It will thus be seen that under both the Notifications referred to above the duty was relatable to weight depending on the iron content in the ore or the ore fines. The question which was posed before the High Court was whether the percentage of iron content had to be determined after ignoring moisture in the lump or the percentage had to be determined taking all the imp....
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....dings Ltd., (2018) 1 SCR 502 as follows: "The Constitution Bench in Commissioner of Income Tax (Central-1 New Delhi) Vrs. Vatika Township Pvt. Ltd., (2015) 1 SCC 1, after noticing the principle of Statutory Interpretation, as noted above, has laid down the following in para 36, 37 and 39: '36. In CIT Vrs. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633, this Court held that as the liability to pay tax is computed according to the law in force at the beginning of the assessment year i.e. the first day of April, any change in law affecting tax liability after that date though made during the currency of the assessment year, unless specifically made retrospective, does not apply to the assessment for that year.' ***" 8.5. In Reliance Industries Ltd. Vrs. Commissioner of Sales Tax, Cuttack and Others, (2020) 77 GSTR 225 (Ori) = AIR 2020 Ori 55 the principle has been enunciated with the following opinion: "10. But in our considered opinion, in a tax statute, the word "substitute" is to be interpreted strictly as per the legislative intention. It cannot be given the retrospective effect unless expressly provided or intention to that effect is manifest fr....
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....n in the said decision of the Supreme Court or in other words to substitute the Wet (WMT) method. This is clear from the fact that such modification from the Wet method to the Dry method, has been very recently introduced by an amendment which is brought about w.e.f. 1st May, 2022. ***' 7.4. We observe that the following orders on this issue also supports the case of the respondent: i. Vedanta Ltd. Vrs. Commissioner of Customs (Prev.), Bhubaneswar, Final Order No.76352 of 2023 dated 18.08.2023 in Customs Appeal No.79383 of 2018, CESTAT, Kolkata; ii. Bagadiya Brothers Pvt. Ltd. Vrs. Commissioner of Customs (Port), Kolkata, Final Order Nos.76644-76645 of 2023 dated 15.09.2023 in Customs Appeal No.75008 of 2021 and anr., CESTAT, Kolkata; iii. Bonai Industrial Co. Ltd. & ors. Vrs. Commissioner of Customs, Visakhapatnam, Final Order Nos.A/30317-30324/2024, dated 21.06.2024 in Customs Appeal No.25364 of 2013 and ors, 2024 (6) LCX 0074-CESTAT, Hyderabad; iv. Kutch Salt & Allied Industries Ltd. Vrs. Commissioner of Customs, Vijayawada, Final Order Nos. A/30223-30224/2024, dated 01.04.2024 in Customs Appeal No.21505 of 2015-CESTAT, Hyderabad; ....
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....considered any of the above and ignored the Circulars as well as directions issued in above mentioned decisions. 7.8. We also place our reliance upon the decision of the Hyderabad Bench of the CESTAT in the case of Kutch Salt & Allied Industries Ltd. Vrs. Commissioner of Customs, Vijayawada, Final Order Nos. A/30223-30224/2024 dated 01.04.2024 in Customs Appeal No.21505 of 2015, CESTAT, Hyderabad reported in (2024) 19 Centax 72 (Tri.-Hyd.). The relevant part of the said decision is reproduced below: '19. To examine this re-determination in the impugned order, we need to examine as to what is transaction value. Transaction value is the price paid or payable by the importer (buyer) to the exporter (seller) as a consideration for the goods which are exported. It is negotiated and agreed to by them in the contract. Nobody else, including the Customs officers have any role in deciding the transaction value because they are strangers to the contract. It determines the rights and liabilities between the buyer and seller. *** If the transaction value is contingent upon certain other factors as per the contract between them, it will have to be determined accordingly. Nobod....
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....isdiction." 8.10. This Court in Commissioner of Customs (Preventive), Bhubaneswar Vrs. Chamong Tee Exports Private Limited, 2025 (III) ILR-CUT 1 = 2025 SCC OnLine Ori 2932, held as follows: "14. We further find that the appellant has taken a different stand in the instant appeal what he took before the Tribunal. A party cannot be permitted to take inconsistent stand at different stages of the proceeding. The plea taken before the Tribunal is sought to be varicated at the stage of the instant appeal, which in our opinion is not permissible. The enlightening observations rendered in the case of Dwijendra Narayan Roy Vrs. Joges Chandra De, reported in AIR 1924 Calcutta 600 = 1923 SCC OnLine Cal 214 can be gainfully applied in this regard, wherein it is held: '*** It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent.: Bhaja Choudhury Vrs. Chuni Lal, (1906) 11 CWN 284; Giris Vrs. Bepin, (1917) 27 CLJ 535; Bama Charan Vrs. Nimai Mandal, (1933) Cal 114. This wholesome doctrine applies not only to the success....
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....ntract, where the proper officer shall compare the two reports as per the terms set out in the contract and finalize the provisionally assessed shipping bills, under the provision of Section 14 of the Act and the Customs Valuation (Determination of Value of Export Goods) Rules, 2007 duly, supported by Bank Realisation Certificates for the purpose of comparison with the final invoices. 9.2. From the Circular, we observe that it has been clearly clarified that the Assessments are to be Finalised on the basis of the above said Circular only. As per the said Circular, Finalisation is to be done on the basis of the following export product. This stand is substantiated by the fact that the remittance has also been received in proportion thereof only. Accordingly, the Fe contents of 57.56% in DMT as per Test Report of Load Port i.e., below 58%, is required to be honoured, which is the basis on which the price payable or paid had been arrived, Final invoice is issued and export remittances are received i.e. Transaction Value under Section 14 of the Customs Act for the exported Iron ore fines. We observe that the Customs Officers cannot change this transaction value or the stipulat....
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.... being used for the purpose of trade and commerce be made applicable for the purpose of determination of its classification for the purposes of levy of export duty on export of raw iron ore in its natural form. Such hypothesis insofar as tariff entries are concerned, appears to be totally unacceptable as recognized by Supreme Court in its decision in Gangadhar Agarwal's case.***' He submits, when exporters enter goods being iron ore fines for export, the buyer would want to contract to pay for the iron content, in exclusion of impurities and moisture. Thus contracts, under which export of iron ore fines are made and in his client's case, the basis was DMT weight of the goods. However, the levy of export duty is on WMT basis, again on which there is no dispute. In the circumstances also, the answer should be in the negative and in favour of his client. 9. We do find that Revenue though had the test report as a document submitted for final assessment, accepted the final assessment made on basis of information obtained from the private test report. This crystalizes into a position on facts that there was no dispute regarding the private test report inasmuch as, no do....
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.... in its natural form. Disclosed in the appeal is circular dated 17th February, 2012, paragraph-3 in which is reproduced below: '3. In light of the observation by the Apex Court that export duty is chargeable according 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.' 13. We answer the question in the negative and in favour of respondent." 9.5. In yet another case, viz., Commissioner of Customs (Preventive), Bhubaneswar Vrs. Chamong Tee Exports Private Limited, 2025 (III) ILR-CUT 1 = 2025 SCC OnLine Ori 2932, it has been observed that: "12. From the above quoted observations of the coordinate bench, it is exposit that the Fe content in IOF is to be determined on the basis of WMT and not DMT and in view of a decision having taken in this regard and in absence of any materials forthcoming before us to take a different v....
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....s Act, 1962, it may be relevant here to quote the statutory provisions as it stands: "130.Appeal to High Court.- (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Principal Commissioner of Customs or Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be- (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Principal Commissioner of Customs or Commissioner of Customs or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of....
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....ng a relation to the rate of duty of customs or to the value of goods for the purposes of assessment, if the Court is satisfied that "the case involves a substantial question of law". 10.3. In Commissioner of Customs (Preventive), Bhubaneswar Vrs. Chamong Tee Exports Private Limited, 2025 (III) ILR-CUT 1 = 2025 SCC OnLine Ori 2932, at paragraph 10 this Court held as follows: "9. Before we proceed to delve into the aforesaid points, we find it prudent to recapitulate the position of law in pursuit to ascertain the substantial question of law involved in an appeal filed before this Court. We are conscious that a mere question of law may not necessarily be a substantial question of law, and, therefore, it is ardent duty of the High Court to ascertain the same and admit the appeal upon formulation thereof. The expression "substantial question of law" has not been defined in the said act or in any other statute containing such expression. The prefix of the words "substantial" before the expression "question of law" must be of such character having bearing on a substance having essential, real and nexus to the issues involved therein, in contradiction with the technical, inco....
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....dence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal,....
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....; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one." 10.4. The Hon'ble Supreme Court of India in the case of Hero Vinoth (Minor) Vrs. Seshammal, (2006) 5 SCC 545, observed as follows: "18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section....
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....ppeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of ....
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....ered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.' This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal case, 1962 Supp (3) SCR 549 = AIR 1962 SC 1314, SCR pp. 557-58) 'The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd t....
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....t covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where- (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total de....
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....tracted herein above, fall within the connotation of expression "the case involves a substantial question of law". Conclusion: 11. It is, thus, abundantly clear from bare reading of provisions of Section 130 of the Customs Act that the appellate jurisdiction of this Court can be invoked on limited contours. This Court does not find any infirmity in the view expressed by the learned CESTAT in adhering to the method of determination of Fe content of the Iron Ore Fines exported based of WMT by accepting the report of SKM, an NABL Accredited Laboratory. 11.1. The questions of law which are posed by the Revenue are basically based on the factual details. The determination of customs duty liability in respect of export of Iron Ore Fines, percentage of Fe content of which was calculated based on WMT as certified by SKM, does not call for determination of the question as "substantial" on the facts and in the circumstances of the case. The finding of the fact returned by the Appellate Authority is affirmed by the learned CESTAT and such finding of fact is based on appreciation of evidence on record and adaptation of consistent approach of the learned CESTAT rendered earlier in diff....
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....ds and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf: Provided that such transaction value in the case of imported goods shall include, in addition to the price as aforesaid, any amount paid or payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf: Provided further that the rules made in this behalf may provide for,- (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there ....