TMI Blog2018 (11) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... avindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical) Smt B.V. Siva Naga Kumari, Commissioner/AR for the Appellant. Shri M.S. Nagaraja, Advocate for the Respondent. ORDER Per: P.V. Subba Rao. 1. This appeal is preferred by the revenue against the Order-in-Appeal No. 12/2009 V-II Cus dated 04.05.2009. 2. The respondent herein is an exporter of iron ore which is subject to export duty @ ₹ 300/Metric Ton (MT). However, if the iron content of the iron ore fines is 62% and below, Exemption Notification No. 62/2007- Customs dated 03.11.2007 applies and only an export duty of ₹ 50/MT has to be paid. The respondent herein filed Shipping Bill No.25 dated 04.07.2007 for export of 42. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and moisture content of 4.36%. It is his submission that accredited Government Testing agency at the load port as well as the discharge port showed the iron ore content to be below 61% and therefore these reports have been relied upon by the first appellate authority while allowing their appeal. It is his further submission that both these reports indicate the moisture content of iron ore fines while the test report of CRCL does not indicate the moisture content. Therefore, it is not clear whether the iron content has been taken on wet basis or on dry basis. It is his submission that there can be a significant difference in the iron ore content depending upon how the iron ore is tested. It has been established that iron ore content must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalties have been paid by the exporter. In view of these factors, we find that the impugned order which has been passed in a very cursory manner without taking into the account the submissions of the party is liable to be set aside..... The subject case is an identical case wherein the appellants have produced two test reports, one from the reputed testing organization and the other from the destination port, which showed that the iron content is less than 62%. They have also produced evidence that the payment has been made basing on the test results at the destination port. 3. Therefore, he argued that the ratio of the decision of the Tribunal in the case of Taurion Iron Steel Company Pvt Ltd (supra) squarely applies to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official test report. The test report at destination port is of the Chinese authorities while the test report at load port is by an independent testing agency of sample drawn by them when the customs officers were not present. She would submit that in view of these, the test report of CRCL cannot be brushed aside as has been done by the first appellate authority. She also draws our attention to the fact in the case of Taurion Iron Steel Company Pvt Ltd (supra) the assessee had requested for a re-test and it was denied by the Revenue and this rejection was seen as denial of principles of natural justice. Such is not the case here. It is her submission that the Exemption Notification No.62/2007-Customs is an exception to the general rule an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that CRCL test reports does not specify the moisture content. The first appellate authority has correctly relied upon this decision as it was applicable during the relevant period. One major difference was that in the case Taurion Iron Steel Co. Pvt Ltd (supra), request for retest by the assessee was rejected thereby denying principles of natural justice which is not the case here. The legal position has changed after the decision of the Constitutional Bench of the Hon ble Supreme Court in the case of CC, Mumbai Vs M/s Dilip Kumar Co and others [supra] as it has been settled that any exemption notification must be construed strictly and any benefit of doubt must go to the revenue. In this case, there are two doubts. One is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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