TMI Blog2018 (10) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... 226 - CESTAT MUMBAI], where it is made clear that the date of export should be the date of let export order. Appeal dismissed - decided against appellant. - Appeal No. C/41/2010 -DB - A/12249/2018 - Dated:- 18-10-2018 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) None for the Appellant Shri S.N. Gohil, Superintendent (AR) for the Respondent ORDER Per: Ramesh Nair The brief facts of the case are that appellant have exported cold rolled galvanized non alloy corrugated steel sheets of zink coating and flat rolled products of iron or non-alloy steel, cold rolled, not clad, plated or coated products falling under CTSH 7214/7209 against six shipping bills filed at ICD, Dashrath, Vadodara for which Let Export Order was issued on 10.05.2008. Vide Notification No. 66/2008-Cus dated 10.05.2008 export duty at the notified rate was imposed on the subject goods. As no duty was paid at the time of export, show cause notice dated 24.07.2008 was issued to the appellant which culminated into the adjudication order whereby demand of customs duty amounting to ₹ 32,66,712/- along with interest was confirmed. A penalty of ₹ 5,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) wherein the bench has passed the following judgment:- 5. The learned Counsel for the respondents argued that the permission under Section 51 is granted to them every day the physical loading is done. He pointed out that 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 lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant 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 and 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. 5.3 The learned Counsel further argued that each permission for loading granted on the checklist of shipping bill is valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : Clearance of goods for 51. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess the shipping bill is passed by the proper officer and unless the goods are handed over to the Master of the vessel. We have already seen that Section 51 provides that when the proper officer is satisfied that an entry made under Section 50 is correct and exporter has paid the 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 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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