2026 (9) TMI 568

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....pugned Order-in-Appeal dated 31.07.2019. Since the parties, impugned order and the issue involved in all the appeals are common, they are taken up together and disposed of by this common order. 2. The fact in brief is that the appellant exported consignments of Iron Ore Fines through Gangavaram Port under three Shipping Bills. The assessments were initially made provisional pending receipt of the test reports and final documents. Subsequently, the jurisdiction Assistant Commissioner finalized the provisional assessments on the basis of the chemical examination reports by treating the Fe content determined on Dry Metric Ton basis ("DMT") as the relevant Fe content percentage. As the Fe content so determined was above 58%, the goods were s....

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....d upon judgment of the Hon'ble Supreme Court in Union of India Vs Gangadhar Narsingdas Aggarwal, 1997 (89) E.L.T. 19 (SC) and upon CBEC Circular No. 4/2012-Cus. dated 17.02.2012. It is submitted that the percentage of Fe content has to be determined with reference to the total mass of the iron ore as presented for export, including the moisture contained therein. Reliance is also placed upon: i) Commissioner of Customs (port), Kolkata Vs Sesa Goa Ltd., 2014 (310) ELT 915 (Tri.-Kol.); ii) General Nice Mineral Resources (I) Pvt Ltd., Vs Commissioner of Customs, Vijayawada, 2017 (352) ELT 94 (Tri.-Hyd.); iii) V.M. Salgaokar and Brothers Pvt Ltd., Vs Asst. Commissioner of Customs (Export), 2023 (11) Centax 215 (Bom); ....

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....n be determined on the basis of facts already available on record, may be raised at the appellate stage. Reference may be made to Jute Corporation of India Ltd., Vs CIT, 1991 (54) ELT 176 (SC) and National Thermal Power Co. Ltd., Vs CIT, 1998 (229) ITR 3 (SC). 11. The mere fact that the appellant had initially accepted the proposed manner of finalization or waived personal hearing would not preclude it from challenging the final assessment in the statutory appeal. There can be no estoppel against the correct application of a statutory provision. The assessments were appealable orders, and the appellant had availed the prescribed appellate remedy. The decision in ITC Ltd., Vs Commissioner of Central Excise, Kolkata-IV, 2019 (368) ELT 216 ....

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....entage for tariff purposes must also be taken on DMT basis. The applicable rate of duty has to be determined in accordance with the tariff notification, the governing statutory provisions and the binding judicial precedents. Nevertheless, the precise WMT Fe percentage, the applicable tariff entry and the consequential duty liability in each shipping bills require verification from the respective test reports, moisture content and other assessment records. Since neither the Adjudicating Authority nor the Commissioner (Appeals), has examined these aspects in the proper legal prospective, it would be appropriate to remand the matters for fresh consideration. 15. Accordingly, the common impugned order dated 31.07.2019 and the corresponding f....