Orissa High Court
M/S. Jsw Steel Ltd vs Assistant Commissioner on 25 March, 2025
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.5439 of 2025
M/s. JSW Steel Ltd. .... Petitioner
Represented by Advocate(s) -
Mr. Ashok Kumar Parija, Sr. Advocate
Mr. Amit Pattnaik, Advocate
Mr. Arihant Jater
Mr. Ritesh Patnaik, Advocate
-Versus-
Assistant Commissioner, .... Opposite Party
Gopalpur Customs Division,
Ganjam
Represented by Advocate(s) -
Mr. T.K.Satapathy, Sr. Standing Counsel (Revenue)
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
THE ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
ORDER
25.03.2025
WP(C) no.5439 of 2025 and I.A. no.2485 of 2025
Order No.
01. 1. Mr. Parija, learned senior advocate appears on behalf of
petitioner and submits, under challenge is re-assessment order
dated 29th November, 2024. He submits, his client exported
iron ore. Iron (Fe) content below 58% does not attract levy of
custom duty. He draws attention to paragraph 2.6 in impugned
order, carrying table of test reports of several tests conducted
on samples drawn. He submits, the samples were drawn on 5th
June, 2023. Test reports at serial nos.1 to 3 of the table were
dated between 1st June, 2023 and 24th July, 2023. All of them
yielded result of (Fe) content below 58%. There was yet
another test done on sample drawn on 5th June, 2023. The re-
test report dated 9th January, 2024 said, Fe content was
61.53%. Based on this there was re-assessment for imposition
of customs duty and demand.
2. He draws attention to Iron Ores-Sampling and Sample
Preparation-Manual Method (Third Revision), Bureau of
Indian Standards. Paragraph 12.1 clearly says, to avoid any
change in the moisture content, the moisture determination
shall be done as quickly as possible, after the sample is taken.
Moving on two Manual of Revenue Laboratories under the
Central Board of Excise and Customs, he draws attention to
chapter-VIII, paragraph 56 thereunder. The paragraph is
reproduced below.
"56. Expedition is a vital requirement of the
Laboratory and all samples should be tested and
reported as quickly as possible."
He then relies on circular dated 17th November, 2014 issued
by Central Board of Customs and Excise, paragraph-2
reproduced below.
"2. It has been reported that iron ore, by its
nature, undergoes a change in moisture and Fe
content with the passage of time including during
transport. The iron ore is tested both at the load
port and at the port of discharge for ascertaining
its quality and price. The commercial contracts
governing its sale, often, contain provisions to
adjust the amount payable depending upon the test
report at the port of discharge. It is also reported
that exporters present provisional invoices at the
time of export since prices are to be finally
determined after tests at discharge port."
3. Mr. Parija submits, his client had earlier moved this
Court by WP(C) no.15146 of 2024, disposed of by coordinate
Bench on order dated 27th June, 2024. He submits, there was
clear finding that test reports stood rejected by revenue
without assigning any reason. Following through his client by
letter dated 4th October, 2024 required reasons for rejecting
the report at serial nos.1 to 3 in the table, as recorded in
minutes of personal hearing on 4th October, 2024. He submits,
no reasons have been furnished by impugned re-assessment
order. He seeks interference on 'stale sample' report relied
upon and violation of principles of natural justice.
4. Mr. Satapathy, learned advocate, Senior Standing
Counsel appears on behalf of revenue. He draws attention to
paragraphs-11.1.4 and 11.1.5 in impugned re-assessment order
as providing reasons for rejection of the earlier test reports. He
opposes interim measure and seeks direction for filing
counter.
5. It appears from relied upon paragraphs-11.1.4 and
11.1.5 of impugned re-assessment order that inter alia, the
authority relied on judgment of the Supreme Court in
Principal Commissioner v. Gandhar Oil Refinery (I) Ltd.,
reported in 2018 (360) ELT A177 (SC), wherein it was said
that department not to rely upon initial CRCL report if it
agreed upon retesting by other labs. Also another case decided
by the Supreme Court in M/s. Dilip Kumar and Company v.
Customs (Import), reported in 361 ELT 577 (SC) for
proposition that when there is ambiguity in exemption
notification, benefit of such ambiguity must be interpreted.
6. We have not been able to locate the judgment said to be
reported in 2018 (360) ELT A177 (SC). Reported in (2018) 9
SCC 1 is Commissioner of Customs (Import) v. Dilip
Kumar and Co..
7. In the facts regarding reliance on test reports, there does
not arise question of benefit of doubt. So far as agreement is
concerned, it must be that the assessee had required retesting
and the department agreed, for the department not to rely on
the prior test report. This fact is not present in this case. We
have prima facie satisfaction to interfere at this stage.
8. Counter be filed by 15th April, 2025. Petitioner may file
rejoinder, to be accepted on adjourned date upon advance
copy served.
9. List on 29th April, 2025. Impugned re-assessment order
will remain stayed till next date of hearing.
(Arindam Sinha)
Acting Chief Justice
(M.S. Sahoo)
Judge
RKS
Designation: Assistant Registrar-Cum-Senior Secretary
