TMI Blog2016 (11) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 dated 29/07/2011, Goa/Cus/GSK/90 91/2012 dated 17/04/2012, Goa-Exccus-002-APP-026 027-2014-2015 dated 08/12/2014 passed by Commissioner of Central Excise (Appeals), Goa. 2. In all these appeals a common issue is interpretation of Section 16 (1) of the Customs Act, 1962 read with Section 51 of the Customs Act, 1962. Section 16 (1) of the Customs Act and Section 51 of the Customs Act, 1962 reads as follows: Section 16(1) in the Customs Act, 1962 (1) The rate of duty and tariff valuation, if any, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the goods were presented for examination in three lots between 19th December, 2009 to 22nd December, 2009 and that the same were passed for shipment. Accordingly, an endorsement on the shipping bill, let export order was made on 22nd December, 2009. As per notification dated 7th December, 2008, duty at the rate of 5% ad volorem was assessed on the goods. According to the petitioner, the duty at 5% was paid on 23rd December, 2009. The loading of the vessel commenced on 20th December, 2009 and was completed on 25th December, 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clearance and loading of the goods for exportation in accordance with Section 51 of the said Act. 8. Coming back to the facts of the case, on the shipping bills, the proper officer - Commissioner of Central Excise has recorded the examination report which reads thus : Examination Report Inspected the lot, checked the description. Quantity actually loaded will be determined on the basis of draught survey Report. The Shipping Bills show that Let Export Order was signed on 28th February, 2007 by the Superintendent Central Excise 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 ₹ 25,000/- and ₹ 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 shipm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the check list of the shipping bill it can be seen that such permission has been granted on each day when loading has taken place. Thus rate applicable on each day of loading will be applicable to the material loaded on that day since for each loading a separate permission of loading is granted. He argued that in such circumstances the enhanced rate of duty would be applicable only to the consignments loaded after the issue of notification enhancing the rate of duty as only in such cases the permission for loading under Section 51 was granted after the issue 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 draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revent 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 51 prescribes that on being satisfied that the export goods 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 goods may permit clearance and loading of goods for exportation.It is seen that in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty, if any assessed, then he may make an order permitting clearance and loading for exportation. We also note that the order under Section 51 is a composite order permitting clearance and loading of the goods for export. Once that order is given, the relevant date in terms of Section 16 is the date of that order. Just because the loading is not completed or in process, there was change in the rate of duty, it does not mean that the earlier order permitting clearance and loading of the goods for export becomes null and void and the new rate would be applicable. That is not there in the Scheme of the Customs Act. 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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