TMI Blog2023 (8) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... dry matric weight of the iron ore. This Tribunal in the case of COMMR. OF CUS. (AIRPORT) , CHENNAI VERSUS KOTHARI SUGARS CHEM. LTD. [ 2008 (2) TMI 757 - CESTAT, CHENNAI] where it was held that bank guarantee furnished by an assessee under court s order to secure the Revenue was held not amounting to payment of duty of excise and, accordingly, the provisions of Section 11B of the Central Excise Act was held inapplicable to a claim for refund of such amount. The above decision is squarely applicable in the present case also since no Stay has been granted by the Supreme Court. There are no merit in the Appeals filed by the Revenue - appeal dismissed. - MR. R. MURALIDHAR, MEMBER (JUDICIAL) AND MR. RAJEEV TANDON, MEMBER (TECH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct was entered on the dry weight basis. The reasoning cited by the appellate authority is contrary to settled law by the Hon ble Supreme Court in the case of UOI Vs. Gangadhar Narsingdas Agarwal [1997 (89) E.L.T 19 (SC)] that the wet weight basis (i.e iron ore along with its moisture content) should be taken as the basis of charging the export duty on iron ore. 3. Based on the above details, the Authorized Representative of the Revenue prays that impugned OIA is required to be set aside and the present Appeals filed by the Revenue should be allowed. 4. The Learned Advocate appearing on behalf of the Respondent submits that the sale price of the Iron Ore is covered by the contract with the overseas importer. As per this contract, the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries Ltd. cited supra. 6. In respect of the Sesa Goa, to the best on the knowledge of the Learned Advocate, no Appeal was filed by the Department before the Hon ble Supreme Court. In the case of Essel Mining Industries Ltd. the Revenue had preferred an Appeal before the Hon ble Supreme Court where the Supreme Court has only admitted the SLP filed by the Revenue. No Stay has been granted against the order passed by the Tribunal. Therefore, he submits that as on date, these two decisions of the Kolkata Tribunal are in force without being overturned. Hence, he submits that the decisions of the Tribunal in these cases are squarely applicable to the present case. 7. In the re-joinder, the Learned Authorized Representative of the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Gangadhar Narsingdas Agarwal (supra), had observed that wet weight be adopted in contrast to the dry weight of the iron-ore fines as the basis for computing the export duty. However, on going through the said judgment, we find that the Hon ble Supreme Court has decided the question whether for the quantification of export duty chargeable on the specific criterion of weight as the basis, be on the dry weight or on wet weight of the iron-ore fines. Needless to say, when the charge of export levy was on specific rate basis, that is on the weight of the iron ore, irrespective of its value, then the basis of dry or wet weight, of the goods become relevant for determination of the quantum of duty. Whereas, in the present case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been decided by this Tribunal in favour of the Assessee/Respondent, observing that the export goods namely, Iron Ore Fines, be assessed to duty, adopting the criteria of Dry Weight , as agreed to between the Assessee/Respondent and the overseas purchasers, vide Order Nos. FO/A/75192-75217/2014, dated 30-4-2014. Hence, this issue is decided in favour of the assessee and against the Revenue. [Emphasis supplied] 13. Coming to the case law relied upon by the Learned AR in the case of UOI Vs West Coast Paper Mills Ltd, we find that the Tribunals have held as under:- Commr. of Central Excise, Delhi Vs. Maruti Udyog Ltd- 2016 (335) E.L.T. 777 (Tri. - Del.) 2. After hearing both sides, we find that the dispute relates to refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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