2002 (7) TMI 547 - AT - Customs

Summary

Issues Involved:
1. Rejection of refund claim for pilfered goods.
2. Interpretation of Sections 13 and 23 of the Customs Act.
3. Association of customs officers in the survey.
4. Application of the doctrine of unjust enrichment.

Detailed Analysis:

1. Rejection of Refund Claim for Pilfered Goods:
The appellant, a PSU of the Government of India, filed for a refund of duty paid on goods pilfered while still under the custody of the International Airports Authority of India (IAAI). The pilferage of 480 ICs, with a duty of Rs. 2,32,438/-, was undisputed. The appellant argued that, as the goods had not been removed from the custodian, they were entitled to a refund. They cited a surveyor's report dated 16-2-94, which confirmed the pilferage. The appellant explained that being a government unit, they were allowed to pay duty before taking possession of the goods. They contended that under Section 13 of the Customs Act, they were not liable to pay duty on pilfered goods unless such goods were restored to them.

2. Interpretation of Sections 13 and 23 of the Customs Act:
The appellant referred to Section 23 of the Customs Act, which provides for remission of duty on goods lost, destroyed, or abandoned before clearance for home consumption. They argued that their case fell under this provision as the goods had not been cleared, and the insurance survey was conducted in the presence of IAAI officials. The appellant also highlighted that they had not received insurance money for the duty paid but only for the value of the goods.

3. Association of Customs Officers in the Survey:
The appellant contended that the authorities' finding that they were ineligible for a refund due to the lack of customs officers' involvement in the survey was incorrect. They provided evidence that their clearing and forwarding agent had sought permission for the survey from the Assistant Commissioner of Customs, who had granted it on 14-2-92. The survey report confirmed the tampering and pilferage of the goods. The appellant argued that the Assistant Commissioner could not claim the absence of customs officers in the survey when permission had been granted.

4. Application of the Doctrine of Unjust Enrichment:
The Commissioner (Appeals) had found that the refund claim was barred by unjust enrichment, as the duty incidence was passed on to the insurance company. The appellant contested this, stating that the insurance company had only reimbursed the value of the goods and not the duty paid. They presented a certificate from the insurance company confirming this. The Tribunal, upon reviewing the certificate, concluded that the refund was not affected by unjust enrichment.

Judgment and Precedents:
The Tribunal referred to the case of Hindustan Petroleum Corporation Ltd. v. CC Bombay, which established that remission of duty is permissible if pilferage occurs before the goods are cleared for home consumption. The Tribunal also cited the case of Taj Mahal Hotel v. CC Bombay, where it was held that remission under Section 23(1) is applicable even if the survey is conducted after the out-of-charge order, provided the goods are still within the customs area. The Tribunal distinguished the present case from Himalaya Granites Ltd. v. CCE and Golden Hills Estates v. CCE, where the goods were in private warehouses under the appellant's control.

Conclusion:
The Tribunal concluded that the appellant's claim was justified and sustainable. The impugned order was set aside, and the appellant's refund claim was allowed with consequential relief. The Tribunal emphasized that as long as the goods remain in the custody of the customs warehouse, the refund is admissible under Sections 13 and 23 of the Customs Act.