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TMI Blog2016 (11) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, applicable to any export goods, shall be the rate and valuation in force, (a) in the case of goods entered for export under section 50, on the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; (b) in the case of any other goods, on the date of payment of duty.] Section 51 in the Customs Act, 1962 51. Clearance of goods for exportation. Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. The respondents are engaged in export of iron ore from Goa. In all these cases, during the period when the iron ore was being loaded on the ship at the port, the rate of duty was enhanced. Consequently duty was demanded on the entire quantity exported. The respondents had argued that enhanced duty would be applicable only to the material loaded after the duty was enhanced. The respondents have argued that enhanced duty cannot be demanded on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2009. The grievance in the petition is as regards non-release of duplicate/exchange control copy of the shipping bill along with the Statutory Declaration Form (for short SDF ), so as to enable the petitioner to submit the same to the Reserve Bank of India authorities as per the provisions of Foreign Exchange Management (Export of Goods and Services) Regulation, 2000. 4.1 The learned AR further argued that the decision in the case of Narayan Bandekar & Sons Pvt. Ltd. Vs. CC&E, Goa 2010 (259) ELT 362, the Hon'ble High Court of Bombay held as follows: "6. We are concerned with clause (a) of sub-section (1) of Section 16 which provides that in case of goods entered for export under Section 50, the date of determination of rate of duty and tariff valuation of export goods will be the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation under Section 51 of the said Act. Sections 50 and 51 of the said Act read thus : 50. Entry of goods for exportation.- (1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and on the same day an order allowed for shipment in full was passed by the said officer. Admittedly, as of 28th February, 2007, only cess was payable on export of iron ore. There is no dispute that cess of Rs. 25,000/- and Rs. 17,000/- respectively was paid against the shipping bills on 28th February, 2007. Admittedly, on 28th February, 2007 no export duty was payable and what was payable was the export cess which was admittedly paid on the same day. The remarks made by the Superintendent of Central Excise show that he was satisfied that the goods were not prohibited goods and, therefore, he passed an order allowed for shipment on 28th February, 2007 and signed Let Export Order on the same day. Thus, the order permitting clearance and loading of goods for exportation under Section 51 of the said Act was made on 28th February, 2007. Thus, 28th February, 2007 is the date for determination of the rate of duty. Admittedly, on that day, the export duty was not payable. It became payable with effect from 1st March, 2007. The Commissioner of Customs (Appeals) held that the Let Export Order was issued on 28th February, 2007 and, therefore, both the requirements of filing of the shipping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of notification. He argued that enhanced rate of duty cannot be applied to the material loaded prior to the issue of notification enhancing the duty as in this case the permission under Section 51 of the Customs Act was granted prior to the issue of notification. He argued that the Commissioner (Appeals) has rightly allowed their appeals. 5.1 He argued that the endorsement on the check list for export reads as follows: Inspected the lot of 20,000 MT of iron ore fines at bank stream in barges. Examined the same superficially checked the desp. and quantity as per invoice and other related documents, RSS will be drawn in triplicate as per ISI specifications by recognized sampler in presence of CHA/exporter under customs supervision and the same will be forwarded to Dy.CC for test . Under this endorsement there is a remarks passed for shipment of the Preventive Officer. He pointed out that this kind of endorsement was made separately on each day when the loading has happened. The learned Counsel argued that this is in fact the permission under Section 51 of the Customs Act and can be called a let export order. 5.2 He argued that there is no bar on granting such permission unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting clearance and loading under Section 51 of the Customs Act, 1962. Any change subsequent to the date of order under Section 51 would not be applicable to the consignments in question. Hence we allow the appeal with consequential relief. 5.3 The learned Counsel further argued that each permission for loading granted on the checklist of shipping bill is valid permission under section 51. In this regard he referred to Rule 5 & 6 of the Shipping Bill (Electronics Declaration) Regulations 2011 which reads as follows: 5. The checklist together with the supporting export documents and challan evidencing payment of duty and/or cess, if any, shall be presented to the proper officer of customs for making an order permitting clearance, for loading of goods for exportation, after examination of the export goods if so required. 6. After making an order under regulation 5 the proper officer shall generate the original (customs copy), exporter s copy exchange control copy and the export promotion copy of shipping bills . The learned Counsel argued that let export order on each consignment of the shipping bill is necessary otherwise the goods will be liable to confiscation under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case at the time of export following endorsement has been made by the Customs officers. Inspected the lot of 20,000 MT of iron ore fines at bank stream in barges. Examined the same superficially checked the desp. and quantity as per invoice and other related documents, RSS will be drawn in triplicate as per ISI specifications by recognized sampler in presence of CHA/exporter under customs supervision and the same will be forwarded to Dy.CC for test . Under the endorsement the preventive officer has also recorded passed for shipment . It is seen that in all these cases the duty has been paid before start of loading. The fact that permission of loading is granted implies that the officer has held that the goods are not prohibited. In each of the cases entire duty has been paid on the first date of loading. Thus each permission of loading can be construed to be a permission under section 51 of the Customs Act. 14. In the case of of Narayan Bandekar & Sons Pvt. Ltd., the Hon'ble High Court of Bombay reported in 2010 (259) ELT 362 has observed that actual time of loading of the ship is not relevant for the purpose of ascertaining the date for the purpose of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What is relevant is that the date of assessment of the shipping bill. The assessment has been done prior to the imposition of Export duty, i.e. on 1-3-2007 arid the duty/cess determined in this case has already been collected prior to 1-3-2007. Nothing can prevent for the export of the consignment and the later changes in the rate of duty would not be relevant. In view of this, we do not find that the impugned order is legal and proper. In fine, we are of the view that of the entire quantity covered by the two shipping bills, no export duty would be leviable as the order permitting clearance and loading has been done even prior to 1-3-2007 which is prior to the imposition of Export duty. Hence in terms of Section 16 of the Customs Act, in the present case, the rate of duty and valuation would be only as on the date of order permitting clearance and loading under Section 51 of the Customs Act, 1962. Any change subsequent to the date of order under Section 51 would not be applicable to the consignments in question. Hence we allow the appeal with consequential relief. In the said decision, the Tribunal distinguished the Boat note issued under Section 35 of the Customs Act from the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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