M/S Ocl Iron and Steels Limited, Kolkata Vs Union of India

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 PetitionerCompany vide order dated 30^th 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:

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“ Under the aforesaid circumstances, it is prayed therefore that

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this Hon’ble Court may be graciously pleased:-

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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);

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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;

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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;

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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.

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Ltd. (supra) and judgment of this Hon'ble Court in Kai International (supra) and therefore untenable in law;

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e. Issue rule nisi on prayer a, b, c and d above;

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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;

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g. If the Opp. Parties fails to show cause or show insufficient cause, make the rule absolute;

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h. To pass such further order/orders, direction/directions as may be deemed fit and proper;

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i. To grant further relief/reliefs as the petitioner is entitled to;

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j. To allow the writ petition;

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And for this act of kindness the petitioner shall as in duty bound and ever pray.”

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3. Facts as adumbrated in this Writ Petition reveal that various shipping bills depicting export of iron ore fines pertaining to the period from 9^th July, 2018 to 2^nd 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

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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 23^rd September, 2022 [2022 (9) Tax Management India 1306] and order dated 11^th 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.

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4. Mr. Saswat Acharya, learned Advocate for the Petitioner drew attention of this Court to reply dated 01^st February, 2025, submitted before the Commissioner- cum -Customs (Preventive), Commissonerate at Bhubaneswar with respect to Show Cause Notice dated 18^th December, 2023 and submitted that all the relevant materials and also the decisions as referred to above along with pertinent circular were submitted on 20^th 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.

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5. Sri Tusar Kanti Satapathy, learned Senior Standing Counsel, Central Excise, Customs and CGST appearing for the

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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.

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6. Heard learned counsel for the respective parties and perused the materials on record.

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7. The Petitioner appears to have filed reply dated 1^st February, 2025 ( vide Annexure-8) in connection with Show Cause Notice dated 18^th 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.

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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

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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 17^th February, 2012 issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs.

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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.

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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 25^th 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.

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9. With the aforesaid observation and direction, the Writ Petition is disposed of. Pending Interlocutory Applications, if any, are disposed of accordingly.

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(Harish Tandon) Chief Justice

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(M.S. Raman) Judge

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Bichi

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Signature Not Verified

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Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 15-Jul-2025 11:25:44

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M/S Ocl Iron and Steels Limited, Kolkata v. Union of India

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M/S Ocl Iron and Steels Limited, Kolkata v. Union of India

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