Commr. Of Customs (Port), Kolkata vs M/S Gng Exports
- CitationAppeal Nos.333
Ratio decidendi
The rule this decision rests on
Where export duty is assessed on the transaction value agreed between the exporter and the overseas buyer, rather than on a specific rate per unit of weight, the choice between dry weight and wet weight of the goods is not relevant to the computation of the duty, because the duty is levied on the value of the goods in the condition agreed by the parties. The decision of the Supreme Court in Gangadhar Narsingdas Agarwal, insofar as it concerned export duty on iron ore fines levied on a specific-rate basis by weight, does not govern an ad valorem assessment on transaction value, and therefore cannot be applied to resolve a dispute about dry or wet weight where duty is charged on transaction value.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Arising out of Order-in-Appeal Nos.Kol/Cus/CKP/177/2011 dated 20.06.2011 & Kol/Cus/CKP/162/2011 dated 23.05.2011 both passed by the Commr. of Customs (Appeals), Kolkata.
For approval and signature:
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 His Lordship wishes to see the fair copy of the Order? :
4. Whether Order is to be circulated to the Departmental Authorities? :
Commr. of Customs (Port), Kolkata APPELLANT(S) VERSUS M/s GNG Exports RESPONDENT (S)
APPEARANCE
Shri S. P. Pal, Appraiser (A.R.) for the Department Shri K. K. Sanyal, Consultant (A.R.) for the Respondent
CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DR. I. P. LAL, HONBLE TECHNICAL MEMBER
DATE OF HEARING & PRONOUNCEMENT : 01. 01. 2015
ORDER NO.FO/A/75002-75003/2015
Per Dr. D. M. Misra :
These two applications are filed by the Revenue seeking the stay of the order-in-Appeal Nos.Kol/Cus/CKP/177/2011 dated 20.06.2011 & Kol/Cus/CKP/162/2011 dated 23.05.2011 both passed by the Commr. of Customs (Appeals), Kolkata.
2. The Ld. A.R. for the Revenue submits that the Applicants had filed Shipping Bill No.E-148 dated 21.04.2011 for assessment of export duty on Iron Ore Fines. The Ld. Commissioner(Appeals) in the impugned order had observed that the assessment be done on dry weight per MT basis whereas, according to the Revenue, it should be on wet weight per MT basis. He submits that the period in dispute is after 13.06.2008. He has fairly accepted that this Tribunal has already decided the issue in the case of Commisssioner of Central Excise vs. SESA GOA Ltd. vide Order No. 10/A/75193-75217/2014 dated-30.04.2014 and also in the case of Commissioner of Customs(Port), Kolkata vs. Noble Resources & Trading India Pvt.Ltd.- Order No.FO/A/75329-75331/2014 in favour of the assessee involving similar issue.
3. The Ld. Consultant for the Respondents submitted a copy of the said Order dated 30.04.2014.
4. With the consent of both sides, the Appeals are taken up for disposal. We find that similar issue has been decided by this Tribunal in favour of the assessee in SESA GOA Ltd.s case observing as :
The Department has challenged the said observation mainly on the ground that the Honble Supreme Court in the
case of GangadharNarsingdas Agarwal (supra), had observed that wet weight be adopted in contrast to the dry weight of the iron-ore fines as the basis for computing the export duty. However, on going through the said judgment, we find that the Honble Supreme Court has decided the question whether for the quantification of export duty chargeable on the specific criterion of weight , as the basis, be on the dry weight or on wet weight of the iron-ore fines.Needless to say, when the charge of export levy was on specific rate basis, that is on the weight of the Iron ore, irrespective of its value, then the basis of dry or wet weight, of the goods become relevant for determination of the quantum of duty. Whereas, in the present case, the duty is levied on the basis of the transaction value agreed between the Respondent and the overseas purchaser on the criterion of dry weight of iron ore fines. Therefore, the determination of export duty on the basis of dry weight or wet weight, in our opinion, is irrelevant as the duty to be computed on the value of the goods in dry weight condition, as agreed by the parties. Therefore, we agree with the contention of the ld. C.A. for the Respondent that the said judgment is inapplicable to the facts and circumstances of the present case. In the result, Revenues Appeals filed on this issue is devoid of merit. Accordingly, ld. Commissioner (Appeals) order to this extent is upheld. Consequently, Revenues Appeals are dismissed.onble Honble This judgement later has been followed in Noble Resources case (supra). Following the precedents, we are of the view that there is no merit in the Appeals filed by the Revenue. Consequently, Revenues Appeals are dismissed. Stay Petitions disposed off.
(Dictated and pronounced in the open Court) Sd/ Sd/ (DR. I.P.LAL) (DR. D.M.MISRA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) mm
2 Cus. Appeal Nos.290/11 & 333/11
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