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Judgment
A.S. Oka, J.—Heard learned Counsel appearing for the petitioner and the learned Asst. Solicitor General appearing for the respondents. Considering the narrow controversy involved in the petition, the same is being disposed of finally at the admission stage. Hence we issue Rule, returnable forthwith. Heard by consent.
According to the petitioner, a shipping bill dated 18th December, 2009 was presented for export of 54600 tonnes of lumpy iron ore as provided u/s 50 of the Customs Act, 1962 (hereinafter referred to as "the said Act"). The case of the petitioner is that the goods were assessed provisionally u/s 18 of the said Act and accordingly, a bond has been furnished by the petitioner. The case of the petitioner is that the goods were presented for examination in three lots between 19th December, 2009 to 22nd December, 2009 and that the same were passed for shipment. Accordingly, an endorsement on the shipping bill, "let export order" was made on 22nd December, 2009. As per notification dated 7th December, 2008, duty at the rate of 5% ad volorem was assessed on the goods. According to the petitioner, the duty at 5% was paid on 23rd December, 2009. The loading of the vessel commenced on 20th December, 2009 and was completed on 25th December, 2009. The grievance in the petition is as regards non-release of duplicate/exchange control copy of the shipping bill along with the Statutory Declaration Form (for short "SDF"), so as to enable the petitioner to submit the same to the Reserve Bank of India authorities as per the provisions of Foreign Exchange Management (Export of Goods and Services) Regulation, 2000.
Learned Counsel appearing for the petitioner relied upon paragraphs 59 and 60 of the instructions contained in CBEC''s Customs Manual of Instructions. He submitted that as let export order has been already issued, the petitioner is entitled to the exporter''s copy of the shipping bill and a copy of the SDF. The contention in the petition is that a copy of the shipping bill and a copy of the SDF are not released by the Department on the ground that the rate of duty was raised from 5% to 10% ad volorem with effect from 24th December, 2009. The case of the petitioner is that a direction was orally issued to pay another sum of Rs. 61,39,613/-, being 5% additional duty.
The learned Counsel appearing for the petitioner invited our attention to Section 16(1) of the said Act. He also invited our attention to Section 50 and Section 51 of the said Act. He submitted that the duty payable on the export goods is at the rate in force on the date on which permission for loading and clearance or "let export order" is given. He submitted that in the present case let export order was issued on 22nd December, 2009 and on that date, the rate of duty was 5% which was increased to 10% from 24th December, 2009. The learned Counsel for the petitioner, therefore, submitted that the act of withholding the documents is illegal. The learned Asst. Solicitor General pointed out that the interpretation of Section 16 of the said Act is different. He submitted that Section 39 of the said Act will have to be read along with Section 51 of the said Act. He submitted that the relevant date is the date on which the order is made for loading of the goods u/s 39 of the said Act and, therefore, the duty payable will be on the date when the order is made u/s 39 of the said Act.
The learned Counsel appearing for the petitioner has relied upon a decision of the CESTAT in the case of 2010 (251) ELT 449 .
We have considered the submissions. Clause (a) of Sub-section (1) of Section 16 of the said Act provides that the rate of duty and tariff valuation applicable to any export goods shall be the rate and valuation in force in the case of goods entered for export u/s 50, on the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation u/s 51. Section 50 and Section 51 of the said Act read thus:
Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form.
(2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents.
Clearance of goods for exportation. - Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation.
As per paragraph 40 of the CBEC''s Customs Manual of Instructions, on passing of a shipping bill by the Export Department, the exporter has to present the goods to the shed appraiser (export) in docks for examination. The shed appraiser may mark the document to a Custom Officer for examining the goods. If the description and other particulars of the goods are found to be as declared, the shed appraiser gives a "let export order" after which the exporter may contact the preventive superintendent for supervising the loading of the goods on the vessel. The order passed in the nature of "let export order" is an order permitting the clearance and loading of the goods for exportation in accordance with Section 51 of the said Act.
Apart from that, on provisional assessment, duty at the rate of 5% has been paid by the petitioner. If according to the Department any additional duty is payable, a demand will have to be made by finalising the assessment u/s 18(2) of the said Act and by issuing a show cause notice. After a "let export order" is issued, the documents cannot be withheld and the said documents will have to be released. Even if the documents are released, the authorities are not precluded from taking steps for recovery of duty in accordance with law.
Hence, we dispose of the petition by passing following order:
Subject to what is observed above, Rule is made absolute in terms of prayer Clause (a). Parties to act upon authenticated copies.