Commissioner of Customs (Preventive) Vs Essel Mining & Industries Limited (CESTAT Kolkata)
Revenue is of the view that the Load Port sample analysis report issued by Mitra S.K. Private Ltd. may not be considered as true representative, but the sample which was forwarded to CRCL, Kolkata is the true representative sample because the Appellant never questioned about the method of drawal of samples.
As per Exporter- the Export duty is required to be calculated on the basis of Fe Contents, moisture and other impurities etc. arrived as per Test Report either at Discharge Port or Load Port, as per the terms of contract with foreign buyer, issued by NABL Accredited Testing Agency ‘Mitra SK Pvt. Ltd.’ at Load Port or CIQ at Discharge Port or Load Port as mentioned in the contract. The same is binding on buyer and seller both and become the basis of Final Invoice for Fe contents, Moisture and other impurities, as well weight etc. and other adjustments as required to be made for Bonus and penalties etc. For arriving final price both the S/Bills.
The Final Invoice has been issued based on Load Port Report issued by ‘Mitra SK’ which has been accepted by the buyer and basis which export remittance has been made and received, duly supported by Bank Realisation Certificate and a Certificate issued by an Independent Chartered Accountant. He further submitted that the Final Invoice Price and value of Final Invoice had been arrived as described above based on Fe contents @57.14% DMT basis i.e. below 58%, which has never been objected by Department, in such case proposing of levying Export duty treating Fe contents more than 58% basis CRCL report would be contradictory itself, as the export proceeds was paid for Fe contents below 58%.
