TMI Blog2018 (8) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... India. The reduced price of the export goods has been correctly accepted by the First Appellate Authority as the price payable or paid for the consignment exported by the shipping bill dated 22.08.2008 - the First Appellate Authority was correct in coming to such a conclusion. The shipping bill dated 22.08.2008 is not yet finalized by the assessing officer. The shipping bill needs to be finalized by the assessing officer - the issue of finalization of the shipping bill remitted to the assessing officer, who shall do so in accordance with the law and shall also consider the documentation entered with Reserve Bank of India by the respondent and consequent to the finalization of the shipping bill shall refund the differential duty paid. Appeal allowed by way of remand. - Appeal No. C/425/2009 - Final Order No. A/30785/2018 - Dated:- 11-7-2018 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Smt. B.V. Siva Naga Kumari, Commissioner (AR) for the Appellant Shri G.H. Pradyumna, Advocate for the Respondent ORDER [ Order Per : M. V. Ravindran ] This appeal is filed by the Revenue against Order-in- Appeal No. 01/2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see exporter (respondent in this appeal) by recording as under: 8. The lower authority has denied the claim for refund of ₹ 1,02,59,511/- under the provision of Section 27 of the Customs Act, on the ground that the assessment was final by adopting the transaction value as per the provision of Sec 2(19), 14 16 of the Customs Act, read with Customs Valuation (Determination of Value of Export Goods) Rules, 2007. The two issues before the lower authority was to determine whether the appellant can claim refund of export duty in respect of assessment which were finalized without challenging the assessment order in the proper forum of appeal and what would be the relevant date for determination of the value of export goods when there was fluctuation in the price, consequent to export. The appellants has heavily relied on the invoice covering the export which was provisional and the letter of permission given by the Reserve Bank of India for reduction of the invoice price of the export consignment from 24,13,623.28 USD to 6,00,500 USD and have rebutted the findings of the lower authority. Regarding the 1st issue the appellant has contended that the reliance placed on the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the absence of the documentary evidence in possession of the department. The appellant has relied on several decisions including the Hon ble Apex Court judgment in the case of Rajkumar Knitting Mills (P) Ltd., Vs. Collector of Customs, Bombay AIR 1998 SC, 2602 in which it was observed that The words ordinarily sold or offered for sale do not refer to the contract between the supplier and the importer, but to the prevailing price in the market. I have perused the judgment of the Hon ble Supreme Court in the case of M.R.F. Industries cited and relied by the lower authority. That was a case pertaining to Central Excise valuation where there was roll back in the price of the tyres manufactured by the appellant company. I am afraid this decision is distinguishable both on facts and circumstances and reliance placed on it in the instance case becomes erroneous. On the other hand the appellant have been contending on two vital aspects. i) that the invoice raised was provisional and ii) that the transaction had the sanctity of approval by the RBI for reduction in post export price. I have perused the invoice bearing No. AE/3/08-09 dated 22nd August, 2008. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment and Revenue as well as the exporter (respondent herein) did not challenge the said assessment. It is the submission that in the absence of any challenge to the assessment filing the refund claim is incorrect is the law settled by the Supreme Court in the case of Priya Blue Industries Ltd., [2004 (172) ELT 145] followed by the Tribunal in the case of Vittesse Export Import [2008 (224) ELT 241] and the following decisions: CC, Delhi Vs. Aman Medical Products [2008 (228) ELT 593 (Tri.- Del)] Mac Megha Agro Equipment s Ltd., Vs. CC, Cochin [2006 (199) ELT 260 (Tri. Bang.)] Kerala Horticulture Development Programme Vs.CC, Cochin [2005 (192) ELT 399 (Tri. Bang.)] Rajkumar Knitting Mills Vs. CC, Mumbai AIR [1998 (SC) 2602 1998 (98) ELT 292 (SC)]. He also relied upon the decision of the Apex Court in the case of Karnataka Power Corporation [2002 (143) ELT 482] for the proposition that reassessment is proper when assessee contested the assessment in writing to the Department. It is also the submission that the First Appellate Authority has incorrectly allowed the refund by placing reliance in the case of Premier Explosives Ltd., [2008 (226) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in the case of Aditya Birla Nuvo Limited [2008 (222) ELT 249] and Jindal Vijayanagar Steels Ltd., [2006 (206) ELT 529] for the proposition, that refund claim itself is challenge to the assessment. It is his further submission that at the time of export, the price agreed got reduced due to the global recession is accepted and admitted by the Government of India as pr the letter of Reserve Bank of India, hence refund claim was correctly allowed by the First Appellate Authority. 6. We have considered the submissions made by both sides and perused the records. 7. On perusal of records, the facts which are undisputed are appellant entered into a contract for consignment of Iron Ore fines by shipping bill dated 22.08.2008 and the said shipping bill specifically carries a endorsement of the assessing officer that it is provisional. The scanned copy is reproduced: It can be seen from the above reproduced shipping bill the assessing officer has accepted that the assessable value is subject payment of differential duty after price adjustment as declared in the Annexure A, would mean that price declared by the exporter (respondent herein) is provisional. On a specific ..... 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