[Cites 2, Cited by 0]
Orissa High Court
Commissioner Of Customs vs Manish Khemka on 18 December, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
OTAPL No.106 of 2025
Commissioner of Customs .... Appellant
(Preventive), Bhubaneswar
Mr. Sujan Kumar Roy Choudhury,
Senior Standing Counsel
-versus-
Manish Khemka .... Respondent
Mr. Saswat Kumar Acharya, Advocate assisted by
Mr. Abhisek Agarwal, Advocate and
Mr. Abhijeet Agarwal, Advocate
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 18.12.2025
01. 1. Assailing order No.50285-20288/2025 dated 7th
February, 2025 passed by the Customs, Excise and Service Tax
Appellate Tribunal, New Delhi (for short, "the CESTAT") in
Customs Appeal No.54712 of 2023, arising out of Order-in-
Original No.06/Manish Saxena/Commr./Adj)/Delhi/NCH/2022-
23, dated 30.11.2022; directed against the order of the
Commissioner of Customs (Preventive), Commissionerate,
Bhubaneswar, the instant appeal has been filed raising the
following question(s) of law:
"i) Whether on the facts and circumstance of the case,
the Ld. Tribunal is correct in law and facts in
allowing the appeal filed by Respondent against
the Order-in-Original No.06/Manish
Saxena/Commr(Adj.)/Delhi/NCH/2022-23 dated
30.11.2022 passed by the Commissioner, Customs
(Adjudication), Delhi Zone, New Delhi?
ii) Whether on the facts and circumstances of the case
the Ld. Tribunal is correct in holding that the net
Fe content of Iron Ore Fines for the purpose of
levy of Customs duty shall be determined on WMT
basis applying the conversion formula, when the
emergence of formula for such conversion has no
statutory basis?
iii) Whether on the facts and circumstance of the case,
the Ld. Tribunal is correct in law and facts in
setting aside the Order-in-Original dated
30.11.2022 passed by the Commissioner, Customs
(Adjudication), Delhi Zone, New Delhi, when data
was retrieved, from the mobile phones, by the
forensic database of Mr. Ajay Gupta who is the
employee of Mr. Manish Khemka, Director of M/s.
Disha Realcon Pvt. Ltd., it was found that there is
incidence of duty liability when cargo was split
into two parts, i.e., less than 58% and above 58%
though the average FE Content of the combined
Cargo is more than 58%"
2. The learned CESTAT, upon taking into consideration of
factual merit of the matter, has held as follows:
"31. To sum up:
a) Each Shipping Bill or Bill of Entry has to be assessed
and the Customs Act does not provide for assessing
two or more Shipping Bills together;
b) Consequently, the classification, valuation or
determination of any other parameter relevant to
assessment also has to be for each Shipping Bill or
Bill of Entry;
c) No officer of Customs including the DRI officers and
the Commissioner of Customs has any power under
the law to assess two or more Shipping Bills together
or determine the Fe content or any other parameter
combining goods covered by two or more Shipping
Bills, even if they are loaded in the same vessel;
d) The Bill of Lading is the document of title issued by
the Master of the vessel or the shipping line to the
exporter and the fact that a single Bill of Lading is
issued in respect of two or more Shipping Bills does
not confer any right on any officer of customs to
assess two or more Shipping Bills together or to
demand consequential differential duty, and
e) Fe content of iron ore fines for export has to be
determined on wet basis as per the judgment of
Supreme Court in Gangadhar Narsinghdas and the
CBEC's Circular that followed and the Commissioner
erred in reckoning the Fe content on dry basis
32. The impugned order dated 30.11.2022 passed by the
Commissioner cannot, therefore, be sustained and needs to
be set aside. The impugned order is, accordingly, set aside
and all the four appeals are allowed with consequential
relief(s) to the appellants."
3. Learned Advocate appearing for the respondent submitted
that the questions of law as posed by the appellant on the facts
and in the circumstances of the case are no more res integra by
virtue of judgment dated 31.07.2025 of this Court passed in
OTAPL Nos.42 & 31 of 2025 respectively in the case of
Commissioner of Customs (Preventive), Bhubaneswar Vs. M/s.
Chamong Tee Exports Pvt. Ltd., wherein it has been held that
"Fe" content in Iron Ore Fines (IOF) is to be determined on the
basis of "Wet Metric Ton" (WMT) but not "Dry Metric Ton"
(DMT). He has placed reliance on the following paragraphs of
the said judgment:
"12. From the above quoted observations of the
coordinate bench, it is exposit that the Fe content
in IOF is to be determined on the basis of WMT
and not DMT and in view of a decision having
taken in this regard and in absence of any
materials forthcoming before us to take a different
view, the said point having settled cannot be said
to be a debatable one nor it invites any different
opinion to be arrived at. The comity of the judicial
discipline demands the uniformity in a
proposition of law and the judgment of the
coordinate Bench of a Court binds the other
coordinate Bench. The only course opens to the
later coordinate Bench, in the event of dissent to
refer the matter to the Chief Justice to constitute a
larger Bench.
13. As indicated above, we do not find any material
forthcoming to take a different view and, therefore,
the judicial discipline demands the adherence of
the judgment rendered by the coordinate Bench at
an earlier point of time. We thus do not find that
the contention of the appellant that Fe content in
IOF is to require to be determined on the basis of
DMT and not WMT is sustainable."
3.1. The learned Advocate submitted that the ratio of
judgment referred to supra is attracted to the instant case in all
fours.
4. Mr. S.K. Roy Choudhury, learned Senior Standing
Counsel appearing for the appellant conceded and submitted that
the aforesaid questions of law as sought to be formulated in the
appeal preferred by the Commissioner of Customs have already
been answered by this Court in the aforesaid cited judgment.
5. Faced with such conceded position of law, this Court
finds no substantial questions of law in the instant appeal filed
under Section 130 of the Customs Act, 1962. Hence, the appeal
is dismissed. Interlocutory Applications, pending if any, shall
also be dismissed accordingly.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
MRS/Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 19-Dec-2025 19:10:21
