Commissioner Of Customs (Port), ... vs M/S. Sesa Goa Ltd
- CitationAPPEAL NO.KOL/CUS/CKAP/76-79/2009 & Order-in-Appeal No. KOL/CUS/CKP/668/09 dated-07/12/20
Ratio decidendi
The rule this decision rests on
Where the Tribunal has already decided, in an earlier order in the same appellant's case or in a connected case on the same goods, that for exports after 01.01.2009 Iron Ore Fines are to be assessed to duty on the FOB price, that issue is governed by the earlier decision and is decided in favour of the Revenue, notwithstanding a subsequent contrary contention by the assessee. Where the Tribunal has already decided that exports of Iron Ore Fines are to be assessed to duty on the Dry Weight basis, as agreed between the assessee and the overseas purchasers, rather than the Wet Weight basis, that question is governed by the earlier decision and is decided in favour of the assessee. Where the assessable value of export goods is sought to be determined by reference to a benchmark price published by a foreign body (here, CCCMMC) without the relevant data having been supplied to the assessee, the determination is set aside and the matter is remanded to the adjudicating authority to redetermine the value after supplying the necessary data to the assessee and affording it a reasonable opportunity to be heard, following the Tribunal's earlier order in the appellant's own case.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(ARISING OUT OF ORDER-IN-APPEAL NO.KOL/CUS/CKAP/76-79/2009 & Order-in-Appeal No. KOL/CUS/CKP/668/09 dated-07/12/2009 PASSED BY COMMISSIONER OF CUSTOMS (APPEALS), KOLKATA)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities?
COMMISSIONER OF CUSTOMS (PORT), KOLKATA APPLICANT/APPELLANT COMMISSIONER VERSUS
M/S. SESA GOA LTD. ...RESPONDENT (S)
APPEARANCE:
SHRI A.K.DAS, SPECIAL COUNSEL FOR THE REVENUE.
SHRI Mukesh Laddha, C.A. Assisted by Ms. Megha Agarwal, A.C.A.
FOR THE RESPONDENT(S).
CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER
Date of Hearing & Decision:18.03.2015
ORDER NO.FO/A/75145-75146/2015
Per Dr. D.M.Misra
These Two Appeals are filed by the Revenue against Orders-in-Appeals passed by the Commissioner of Customs (Appeals), Kolkata. The issues involved in these Appeals being common, are taken up together for disposal.
2. Ld. Special Counsel, Shri A.K.Das appearing for the Revenue submitted that the first issue relates to determination of assessable value of export goods viz. Iron Ore Fines, by adopting the FOB price as assessable value or treating the said price as cum duty value, for goods exported by the Respondent for the period after 01.01.2009. He submits that the issue had been decided in favour of the Revenue by this Tribunal, vide Order No. FO/A/71188-71218/2013 dt.12.12.2013 which was followed subsequently vide Order No.FO/A/75218-75246/2014 dated 30.04.2014.
2.1. The ld. Special Counsel also submits that the second issue involved in the present case, is whether duty be calculated on Wet Weight basis, under which the Assessee/Respondent agreed to supply the goods to the overseas purchaser or on the transaction value of the goods on Dry Weight basis for the period after 13.06.2008. He submits that the said issue has been decided by this Tribunal in favour of Assessee/Respondent, vide Order No.FO/A/75192-75217/2014 dated 30.04.2014.
2.2. On the third issue, the ld. Special Counsel submitted that it relates to determination of assessable value adopting the transaction value or on the basis of Bench-Marked Price published by the China Chamber of Commerce of Metals, Minerals and Chemicals (CCCMMC). After consideration of the said issue, this Tribunal had remanded the same to the original Adjudicating Authority for deciding the issues afresh, after supplying the contemporaneous evidences/data to the Respondent in rejecting the transaction value for export goods declared by them. He prays that the present case also be remanded for the said purpose.
3. Ld. CA for the Respondent has not disputed the above facts and has no objection in remanding the case to the ld. Adjudicating Authority for determination of the assessable value. However, he pleads that a time-frame may be fixed for deciding the issue.
4. We find that this Tribunal had already decided the issue of determination of duty of export goods, namely, Iron Ore Fines, and observed that for the period after 01.01.2009, the said goods be assessed to duty adopting the FOB Price, vide Order No. FO/A/71188-71218/2013 dt.12.12.2013 and later followed in the appellants case vide Order No. FO/A/75218-75246/2014 dated 30.04.2014. Following the same, the said issue is decided in favour of the Revenue and against the Respondent.
5. We find that the assessment of export goods whether on Dry Weight or on Wet Weight basis, for the period after 13.06.2008, has been decided by this Tribunal in favour of the Assessee/Respondent, observing that the export goods namely, Iron Ore Fines, be assessed to duty, adopting the criteria of Dry Weight, as agreed to between the Assessee/Respondent and the overseas purchasers, vide Order No.FO/A/75192-75217/2014 dated 30.04.2014.
6. Regarding determination of the assessable value of the export goods on the basis of bench mark price of CCCMMC with out supplying the said evidence/ data to the Respondent, we had remanded the matter to the ld. Adjudicating Authority for re-determination of the assessable value, after supplying the necessary data to the Respondent, in the appellants own case vide Order No. FO/A/75218-75246/2014 dated 30.04.2014. Accordingly, following the said precedent, for determination of the value, we remand the case to the ld. Adjudicating Authority for deciding the issue afresh after supplying the relevant data to the Respondent. Needless to mention a reasonable opportunity be allowed to the Appellant. This issue may be decided, preferably within three months from the date of communication of this Order. The Revenues Appeals are disposed off on above terms.
(Dictated and pronounced in the open court.) Sd/- 19/03/15 Sd/- 19/03/2015 (I.P.LAL) (D.M.MISRA) MEMBER (TECHNICAL) MEMBER (JUDICIAL)
K.B/-
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CUSTOMS APPEAL NOs.C/235 09/112/10
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