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TMI Blog2025 (5) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... y at load port, Test report at discharge port, etc., for finalization of assessment by the proper officer. Thereafter, a speaking order dt.30.06.2011 was passed by the Assistant Commissioner of Customs, who finalized the assessment of Iron Ore Fines with Export duty of Rs.26,95,760/- and Cess of Rs.16,018/-. Therefore, the appellants became entitled for refund of excess duty paid amounting to Rs.1,22,447/-. The Department challenged the above speaking order dt.30.06.2011 before the Commissioner (Appeals), who vide the impugned order dt.15.02.2012, allowed the appeal filed by Department and has set aside the finalization of assessment order passed by the Adjudicating Authority. He further held that the transaction value declared by the appellants requires to be rejected under the provisions of Rule 8 of Customs Valuation (Determination of the Value of Export Goods) Rules, 2007 and that the value is to be determined by invoking the provisions of Rule 4 read with Rule 6 of the said Rules, which provides for adoption of transaction value of goods of the like kind and quality exported at or about the same time to other buyers in the same destination. 3. The appellant submits that the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd BRC cannot be rejected without substantive evidence which proves that export price was not true or genuine. He relied on the following judgments in support of this contention. a) CCE & ST, Noida Vs Sanjivani Non-Ferrous Trading Pvt Ltd [2019 (365) ELT 3 (SC)] b) CC, Mumbai Vs Tex Age [2016 (340) ELT 3 (SC)] c) CC, Mumbai Vs Vishal Exports Overseas Ltd [2007 (209) ELT 331 (SC)] d) CC, Goa Vs VGM Exports [2013 (291) ELT 572 (Tri-Mumbai)] e) CC, Visakhapatnam Vs Rashmi Metaliks Ltd [2016 (342) ELT 458 (Tri- Hyd)] f) Mahajan Fabrics Pvt Ltd Vs CCE, New Delhi [2017 (357) ELT 1240 (Tri- Del)] 5. Learned Advocate accordingly submits that impugned order is not proper, legal and correct on facts and in law and prays for setting aside the same and to restore and confirm the finalization of assessment order dt.30.06.2011 by allowing the appeal. 6. On the other hand, learned AR reiterates the findings given by Commissioner (Appeals). He also submits that appellant opted provisional assessment in the terms of contract with importer in which price adjustment is based on Fe content. The base price of Iron Ore at 61% is US $76 per DMT subject to radiations. The appellant has decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is immaterial what method one adopts for the purposes of separating the iron content from the lumpy iron ore but the percentage has to be determined from the total weight which was available at the given point of time after the iron content is determined. That is because the duty is relatable to weight and, therefore, once the iron content is determined keeping in mind the total weight the percentage can be determined separating the iron content from the rest of the impurities inclusive of moisture and thereafter ascertain in which category the lumpy iron ore would fall for the purposes of charging duty under the aforesaid Notifications. This view which the learned Single Judge took and which came to be affirmed by the Division Bench of the High Court appears to us to be the correct view to take, for the reason that if the percentage of iron content is determined after ignoring the moisture the percentage would not be relatable to the lumpy iron ore weighed at the relevant point of time for the purposes of charging duty. We, therefore, do not think that the High Court committed any mistake in the view it took. Even if two views were possible the view taken by the High Court bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Kakinada is not tenable. 14. Learned Advocate further relied on section 14(1) of the Customs Act, 1962 which is the basis for determining the value of goods and the same is reproduced below for ease of reference: "Section 14. Valuation of goods - (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf" 15. He further submits that the transaction value/invoice price corroborated by sale/purchase contract and BRC cannot be rejected without substantive evidence that the export price was not true or genuine. He placed reliance on the following judgments in support of this contention. a) CCE & ST, Noida V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is indicated in the final invoice price, which has been received by them through the Bank. In other words, the price actually paid for the goods exported was the price realized by them as per the final invoice and as per the Bank certificate and that is the transaction value on which duty liability has to be discharged." c) CC, Visakhapatnam Vs Rashmi Metaliks Ltd [2016 (342) ELT 458 (Tri- Hyd)]. The relevant para is reproduced below: "4. We find that the grounds raised by the department have been taken cognizance of by the Commissioner (Appeals) and the order passed by him is well reasoned. When the department accepts the BRC, as well as the final invoice of the exporter and has no doubt or dispute that amount other than what was reflected in final invoice was not received by the latter, the BRC has to be given credibility and reliance. This being so we do not find any infirmity in the impugned order. The appeal of department therefore requires to be dismissed, which we hereby do." d) Mahajan Fabrics Pvt Ltd Vs CCE, New Delhi [2017 (357) ELT 1240 (Tri- Del)]. The relevant para is reproduced below: "10. ...... it is seen that the customer in the foreign country has accep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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