Home Case Index All Cases Customs Customs + AT Customs - 2023 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (8) TMI 947 - AT - CustomsConfiscation - redemption fine - penalty - illegal export by resorting to gross mis-declaration about the ‘Fe’ content - Department issued the Show Cause Notice on the ground that in all the seven cases, the ‘Fe’ content was more than 64% whereas the Appellant was claiming that in all these cases, the Fe content was between 63 to 63.97, hence less than Fe content of 64% - HELD THAT:- The Fe content on Dry Weight basis, arrived at by the chemical examiner, vis-a-vis the Dry Weight Fe arrived at by the Private laboratories, engaged by the Appellant, have to be considered for this purpose. Therefore, the contention of the Appellant that only the Wet Weight Fe is required to be considered for this purpose cannot be accepted. It is an admitted fact that when the iron ore is received at the port, it is in wet condition with moisture and other impurities. Therefore, the Fe content of Wet Iron Ore is to be taken to arrive at the Fe content of the Dry metric ton as per the formula. On its own, the Wet Metric Ton Fe by itself cannot be considered in this case as the issue pertains to Fe content on DMT basis. From the test reports relied upon by the Department, which have been issued by the chemical examiner, it is seen that they have simply removed the moisture content. They have only taken into consideration the moisture content and arrived at the Fe content of the Dry Metric Tons. From the Test Reports of CRCL, it is seen that they have not considered the content of any other impurities which may be in the iron ore while arriving at the at the Fe content of the dry metric tons. For the samples drawn by the appellant and given to the Private Laboratories, they have taken up the Test and then given the test results within a period of 6 to 9 days. In the case of Test Reports given by the Chemical Examiner, it is seen that the Tests have conducted with a delay of 3 to 4 months - Department, even after receiving all the documentary evidence, including the Test Report of Private Labs, BRC, etc. from the Appellant, in June 2013, failed to complete the finalization of the assessment of the Shipping Bills. It is seen that the Appellant has been regularly taking up with the Department and higher officials, including the Ministry in 2013, 2014, 2015, and 2016 to complete the assessment process but nothing was done by the Department till they issued the Show Cause Notice in August 2018. The Appellant has taken the Fe content of DMT given by the Private Laboratories and has raised the bill based on such DMT values on the overseas importer. Since initially the Appellant has taken the stand that Fe Content on DMT basis is 63 in respect of all the consignments, this resulted in higher payment by the overseas importer. On such receipt of excess amount/ additional amount from the overseas importer, the Appellant has paid the differential export duty. There is no dispute on this issue. This fortifies the Appellant's argument that the overseas importer has accepted the DMT Fe content as given by the private laboratories and made the payment. It is seen that the Test Report itself was generated with a delay of 105 to 138 days, and even after the Test was completed in 2010, the Appellant was never provided the copies of the Test Report till they were annexed to the Show Cause Notice issued in 2018. In such a case, there was scope for the Appellant to approach any other authority to get the consignment retested or to question the Test Report given by the CRCL. Appeal allowed.
|