2005 (3) TMI 600 - AT - Customs

Summary

Issues:
1. Interpretation of Sec. 72(1)(d) of the Customs Act regarding demand of duty on damaged goods.
2. Application of previous judgments in similar cases.
3. Consideration of duty payment on goods claimed as waste or damaged.
4. Assessment of duty payment on goods properly accounted for but damaged in transit.

Analysis:
1. The case involved a Revenue appeal against an order passed in favor of the assessee, where the Commissioner rejected the demand for duty under Sec. 72(1)(d) of the Customs Act. The provision allows for demanding duty on goods not duly accounted for. However, in this case, the goods were damaged in transit, not unaccounted for. The Commissioner upheld the appeal, stating that the provision was not applicable in this scenario as the goods were properly accounted for before the accident occurred.

2. The Revenue contended that duty should have been paid on the goods not as waste or damaged ones but on the quantity of goods not exported. They relied on previous judgments like Pasupathi Overseas Pvt. Ltd. and Union Carbide India Ltd. However, the Tribunal found these judgments distinguishable as they dealt with different circumstances, such as loss or destruction of warehoused goods, which was not the case here.

3. The Revenue also argued that since the assessee claimed insurance on the damaged goods, they should have paid duty on the damaged portion. The Tribunal disagreed, noting that the appellants had paid duty on the goods in the condition they were sold, i.e., as damaged goods. The provision for payment of duty on waste applied in this case, and the department could not fault the assessee for claiming insurance on the damaged goods.

4. Ultimately, the Tribunal upheld the order rejecting the Revenue appeal. It concurred with the Commissioner that Sec. 72(1)(d) of the Customs Act was not applicable in this situation where the goods were properly accounted for but damaged in transit. The demand raised under this section was deemed unsustainable, and the Tribunal affirmed the decision based on the proper assessment of the facts and legal provisions.