At, Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata
By, THE HONORABLE JUSTICE: P.K. CHOUDHARY
By, MEMBER AND THE HONORABLE JUSTICE: B. RAVICHANDRAN
For Petitioner: S.K. Naskar, A.C. (A.R) And For Respondents: K.K. Achariya, Advocate
1. The appeal by Revenue is against order dated 17/01/2012 of Commissioner (Appeal), BBSR.
2. The respondent have filed a shipping bill on 23/02/2011 for export of Iron Ore Fines. The said shipping bill was assessed to duty as per the prevailing rate of 5% ad valorem on 24/2/2011. Export order for the said shipping bill was passed by the competent authority on 25/2/2011. On 1/3/2011, the export duty on the impugned goods was enhanced from 5% to 20% vide Customs Notification No. 27/2011 dated 1/3/2011. On 3/3/2011, the already assessed shipping bill was corrected to calculate the applicable export duty based on the revised rate and the respondent was advised to pay additional duty of Rs. 2,50,38,565/- over and above of original assessed duty of Rs. 83,69,364/-.The respondent paid the duty under protest. They agitated the reassessment of duty liability and also filed claim for refund of excess duty of Rs. 2.50 Crores. The refund claim was rejected on 30/08/2011. The said rejection was challenged by an appeal. Both the appeals by the Respondent were disposed off by the present impugned order of the Commissioner (Appeals). He held that there is no reassessment as per law and the refund claim by the respondent is eligible to them.
3. The Revenue is aggrieved by the said order and filed this appeal. Ld. A.R. elaborated the grounds of appeal and submitted that Section 16 read with Section 50 and 51 of the Customs Act, 1962 makes it clear that the requirement for granting let export order is that goods should not have been prohibited items and the exporter has paid duty as assessed. In the present case, loading is not complete and the let export order dated 25/2/11, cannot be considered as due and proper order. Though the said let export order was not re-called, it is the case of the Revenue that the goods are liable to enhanced duty as loading continued after duty increase. He further submitted that re-assessment of the export duty was properly made based on the applicable legal provision and asserted that the duty paid by the Respondent on 3/3/2011 is correct and proper and there is no excess payment, due for refund to the respondent.
4. We have heard both sides and perused the appeal records. Centre point of the dispute is relevant date for application of export duty on the impugned consignments. The chronology of dates mentioned herein above are not in dispute. Revenue asserted that when the goods are not fully loaded, the revised rate of duty will apply and accordingly the respondent has to pay the same. First of all, we note that the impugned order clearly recorded that there is no reassessment at all, of the shipping bill. It is recorded that the shipping bill which was duly assessed to export duty on 24/2/2011, was merely corrected to have the revised export duty. Such manual correction, which was not based on re-assessment order issued to the respondent, was held to be without authority of law. We are in agreement with the findings of the Commissioner (Appeal). In fact, the basis of recalculation of duty was obtained by the respondent through a RTI application. Such calculation cannot be called as reassessment of shipping bill.
5. Regarding the relevant date for applying the rate of export duty, we note that the let export order was duly issued by the competent officer on 25/2/11. As per records, there is no other let export order issued for this consignment and neither any such order was asserted by the Revenue. In this connection, we refer to the decisions of Hon'ble Bombay High Court in the case of Prime Mineral Exports Pvt. Ltd. Vs. Union of India reported in : 2010 (257) ELT 414 (Bom.) and in the case of Narayan Bandekar & Sons Pvt. Ltd. Vs. Commr. of Customs & Central Excise, GOA reported in : 2010 (259) ELT 362 (Bom.). The High Court examined the relevant date for export of applicable in identical situation and held that the date of let export order permitting loading of goods was relevant to decide the correct rate of duty. The High Court also held that the date on which the actua
Please Login To View The Full Judgment!
l loading of iron ore was started is totally irrelevant. Following the ratio of these decisions and in terms of clear legal provisions of Section 16 read with Section 50 and 51 of the Customs Act, 1962, we find that the impugned order has been passed in line with the said legal provisions. We find no force in the present appeal by the Revenue to persuade as to interfere with the findings of the Commissioner (Appeal). Accordingly, the appeal is dismissed.