01. This matter is taken up through hybrid mode.
2. The Petitioner-M/s. OCL Iron and Steels Ltd., pursuing the
matter relating to finalization of provisional assessment in respect
of Shipping Bills relating to the transactions of export effected by
M/s. S.M. Niryat Pvt. Ltd. (now amalgamated with the Petitioner-
Company vide order dated 30th January, 2024 passed by the
National Company Law Tribunal, Kolkata Bench), filed writ
petition under Articles 226 and 227 of the Constitution of India with
the following prayers:
"Under the aforesaid circumstances, it is prayed therefore that
this Hon'ble Court may be graciously pleased:-
a. To direct the Opp. Parties to finalise the
provisional assessment in respect of shipping bills pertaining
to period from 9th July 2018 to 2nd April 2022 vide
Annexure-2 series on Wet Metric Ton (WMT) basis and not
on Dry Metric Ton (DMT) basis, as proposed in the show
cause notice dated 18th December 2023 vide Annexure-6 in
view of ratio laid down by Hon'ble Apex Court in the case of
M/s. Gangadhar Narsingh das (supra) and judgment of
Bombay High Court in M/s. V.M. Salgaocar and Brother Pvt.
Ltd. (supra) and board's own circular dt. 17.02.2012 and
judgment of jurisdictional tribunal own determination of
various shipping bills in the case of Bagadiya Brothers Pvt.
Ltd. (supra) and judgment of this Hon'ble Court in Kai
International (supra);
b. To issue writ in the nature of mandamus or any
other appropriate writ directing the Opp. Parties to finalize
the provisional assessment within a stipulated time as
directed by this Hon'ble Court and to grant refund of excess
payment of duty paid under protest along with interest
@15% from the date of such deposit till actual payment in
the ends of justice;
c. To hold inordinate delay in concluding final
assessment despite of direction of this Hon'ble Court in
W.P.(C) No. 2834 of 2021 vide order dt. 19.02.2021 being
illegal, unfair and arbitrary;
d. To further declare and hold the impugned demand
cum SCN dt. 18.12.2023 to levy duty on DMT basis under
clear demonstration as basis for redetermination to be in
violation of ratio laid down by Hon'ble Apex Court in the
case of M/s. Gangadhar Narsinghdas (supra) and judgment
of Bombay High Court in M/s. V.M. Salgaocar and Brother
Pvt. Ltd. (supra) and board's own circular dt. 17.02.2012
and judgment of jurisdictional tribunal own determination of
various shipping bills in the case of Bagadiya Brothers Pvt.
Ltd. (supra) and judgment of this Hon'ble Court in Kai
International (supra) and therefore untenable in law;
e. Issue rule nisi on prayer a, b, c and d above;
f. to issue appropriate writ directing Opp. Parties
not to perpetuate by overreaching the binding judgments of
Hon'ble Apex Court and department's own circular to
redetermine transaction value based on BIS parameters as
being illegal, arbitrary and without jurisdiction;
g. If the Opp. Parties fails to show cause or show
insufficient cause, make the rule absolute;
h. To pass such further order/orders,
direction/directions as may be deemed fit and proper;
i. To grant further relief/reliefs as the petitioner is
entitled to;
j. To allow the writ petition;
And for this act of kindness the petitioner shall as in duty
bound and ever pray."
3. Facts as adumbrated in this Writ Petition reveal that
various shipping bills depicting export of iron ore fines pertaining to
the period from 9th July, 2018 to 2nd April, 2022 are subject-matter
of the present Writ Petition. Though the provisional assessment was
undertaken, the same has not culminated in final assessment. The
Petitioner is apprehensive of the manner and the method of
determination of Fe content of iron ore fines which were stated to
have been exported by the amalgamated company. At the relevant
point of time, iron ore fines having Fe content less than 58% was
classified as "low grade iron ore", export of which was considered
to be exempted from levy on custom duty. Therefore, the petitioner
seeks indulgence of this Court praying for a direction to the
appropriate authority to consider the legal position as stated by the
Hon'ble Supreme Court in the case of Union of India (UOI) and
others Vrs. Gangadhar Narsingdas Aggarwal and others, (1997) 10
SCC 305, decision of Bombay High Court in the case of V.M.
Salgaocar and Brother Pvt. Ltd. and others Vrs. The Assistant
Commissioner of Customs (Export) and others vide order dated 23rd
September, 2022 [2022 (9) Tax Management India 1306] and order
dated 11th December, 2024 passed by this Court in Commissioner of
Customs (Preventive), Bhubaneswar Vrs. Kai International, OTAPL
No.40 of 2024. Since the final assessment ought to be done taking
into consideration the Wet Metric Ton (WMT) basis and not Dry
Metric Ton (DMT) basis, the petitioner sought for intervention of
this Court for a direction to the statutory authority concerned to
adopt WMT method for determination of percentage of Fe content
with respect of export of iron ore fines during the period in
question.
4. Mr. Saswat Acharya, learned Advocate for the Petitioner
drew attention of this Court to reply dated 01st February, 2025,
submitted before the Commissioner-cum-Customs (Preventive),
Commissonerate at Bhubaneswar with respect to Show Cause
Notice dated 18th December, 2023 and submitted that all the
relevant materials and also the decisions as referred to above along
with pertinent circular were submitted on 20th February, 2025.
Therefore, the petitioner seeks a direction to the authority concerned
to consider such reply and grounds/explanation contained therein at
the time of finalization of provisional assessment.
5. Sri Tusar Kanti Satapathy, learned Senior Standing
Counsel, Central Excise, Customs and CGST appearing for the
Opposite Party Nos.2 to 5 submitted that there is no necessity for
issue of direction to the Opposite Parties for finalization of
assessment. The contention of the counsel for the petitioner was
opposed by canvassing that when reply is furnished in connection
with the Show Cause Notice issued by the competent authority, no
doubt could be entertained that the quasi judicial statutory authority
would ignore relevant materials placed by the Petitioner. It is
preposterous to contend that the said statutory authority would
ignore the legal position set forth by different Courts during the
course of final assessment which are considered relevant and
applicable to the fact-situation of the case of the petitioner.
Therefore, at this stage seeking intervention of this Court would
pose detriment to the assessee in seemly adjudication of facts based
on material on record. Since the Writ Petition has been filed on an
apprehension, the same is not maintainable, being premature.
6. Heard learned counsel for the respective parties and
perused the materials on record.
7. The Petitioner appears to have filed reply dated 1st
February, 2025 (vide Annexure-8) in connection with Show Cause
Notice dated 18th December, 2023 before the Commissioner of
Customs (Preventive), Commissionerate at Bhubaneswar and the
said authority till date has not proceeded to finalise the shipping
bills.
8. It is true, as argued by Sri Tusar Kanti Satapathy, learned
Senior Standing Counsel, that touching merit of the matter by
laying guidelines to proceed with the determination of Fe contents
of iron ore fines which were exported would affect adversely the
final assessment which is required to be based on fact-finding based
on evidence available on record by applying appropriate law to such
facts. Nonetheless, it needs to be observed that the said authority,
while finalizing the provisional assessment, shall have to take into
account not only the material placed before him but also decide
whether relevant decisions suggesting method of determination of
Fe contents of iron ore fines exported are applicable along with
Circular No.04/2012-Cus., dated 17th February, 2012 issued by the
Ministry of Finance, Department of Revenue, Central Board of
Excise and Customs.
8.1. It, therefore, needs to be emphasized without expressing
any opinion touching the merit of the matter that the authority
concerned shall proceed to complete the final assessment taking
into consideration the reply as stated to have been submitted by the
Petitioner vis-à-vis materials available on record.
8.2. For the said purpose, the Petitioner is, therefore, directed
to appear before the concerned authority along with copy of this
Order on or before 25th July, 2025. On the date of such appearance,
the authority may proceed to finalise the provisional assessment
forthwith or may adjourn the proceeding for a future date as he
deems appropriate. However, after affording a reasonable
opportunity of hearing, he shall conclude the proceeding. It is
further directed that while petitioner-assessee shall not be granted
unnecessary adjournments if date(s) is fixed beyond 25.07.2025, the
authority concerned shall complete the entire process of finalization
within a period of two months from the date of appearance of the
Petitioner as stipulated above.
9. With the aforesaid observation and direction, the Writ
Petition is disposed of. Pending Interlocutory Applications, if any,
are disposed of accordingly.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
Bichi
Signed by: BICHITRANANDA SAHOO
