9911796707
TMI Blog2024 (10) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a refund claim on 08.04.2009 claiming refund of export duty of Rs.50,25,500/- being the excess duty @ Rs.250/- per metric tonne paid at the time of export of Iron Ore under Shipping Bill No.100/07 dated 30.04.2007. The refund claim was though sanctioned by the adjudicating authority but directed to be credited to the Consumer Welfare Fund. Aggrieved by the said order, they filed appeal before the learned Commissioner(Appeals) who in turn rejected their appeal. Hence, the present appeal. 3. At the outset, the learned advocate for the appellant has submitted that the appellant had entered into a contract dated 14.04.2007 with M/s. Steelmet PTE Ltd., Singapore for supply of 44000MT of Iron Ore fines. Under Clause 4 of the said contract, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational Commercial Terms for FOB transactions published by the International Chamber of Commerce, the seller delivers the goods on board a vessel by bearing all costs and risks up to the point of loading, including export clearance; and as per Gencon 94, all taxes, charges, duties, the exporter is required to pay the same customarily levied on the cargo. He has submitted that the appellant has realised export proceeds from the foreign buyer only to the tune of USD 1,119,126 as against USD 2,388,320 initially agreed for supply of 44000 WMT. Also, they have placed the certified copy of cost sheet as well as bank certificate of export realisation duly verified in support of their refund claim of the excess duty paid. He has submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly transferred to the Consumer Welfare Fund by the lower authorities. 5. In his rejoinder, the learned advocate has submitted that reference to the circular No.18/2008-Cus dated 10.11.2008 by the learned AR for the Revenue is misplaced as the said circular was issued by the Board with the objective of clarifying the computation of export duty under Section 14 of the Customs Act which is computed by working backwards from FOB price declared by the exporter. The said circular was issued in response to certain doubt raised about the existing practice of computation of export duty for the period prior to 31.03.2008. Subsequently the practice was changed from 01.01.2009 insofar as the transaction value i.e. the price actually paid or payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borne by them. The learned Commissioner in the impugned order, on the other hand, without analysing the documents concluded that appellant had only placed the balance sheet for the year 2007-08 and 2009-10 but failed to produce any bills, vouchers, receipts relating to various expenses relatable to cost of the goods for verification and rejected the argument of the appellant that the incidence of export duty was borne by them and not passed on to the overseas buyers. On going through the cost sheet duly certified by the Chartered Accountant enclosed with the appeal paper book, we find that in arriving the cost of the material, the export duty amount was calculated @ Rs.51/- per MT for 20102 MT, which was shown separately and not included i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Incoterms, there cannot be any doubt that it is always the duty and obligation of the seller to bear the costs of customs formalities as well as the duties, taxes and charges payable upon export. 22. In these appeals, the invoice value is also FOB value. Therefore it cannot be said to include the duty paid under the Cess Act and, therefore, the presumption under Section 28D of the Act stands rebutted by the appellants. The CCE (A) went utterly wrong in construing the point A6 ignoring paragraph 14 of Incoterms as well as the sale contract between the appellant and buyer. Therefore the CESTAT was justified in holding that the finding of CCE (A) that FOB value included the cess is unsustainable. We accordingly hold that the principle o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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