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Issues:
- Interpretation of provisions of Customs Act, 1962 regarding refund of duty on shortages in packages. - Applicability of sec. 13 and sec. 23 of the Customs Act, 1962 in cases of pilferage or loss of goods. - Comparison of provisions under sec. 13 and sec. 23 based on legislative intent and historical context. - Examination of the judgment of the Delhi High Court in a similar case and its relevance to the present case. - Consideration of the presence of a Customs Officer during the survey and its impact on the liability of the Department. Analysis: 1. The appeal before the Appellate Tribunal CEGAT Madras involved a dispute regarding the refund of duty on shortages in a package of dry fit batteries. The claim for refund was initially rejected by the Assistant Collector and subsequently by the Appellate Collector based on the application of sec. 13 of the Customs Act, 1962. 2. The primary issue for determination was whether sec. 13 or sec. 23 of the Customs Act, 1962 would apply in a situation where goods are not available at the time of physical clearance due to pilferage or theft. The petitioners argued that sec. 23 should be applied, citing a judgment of the Delhi High Court in a similar case. 3. The Tribunal analyzed the legislative intent behind the provisions of sec. 13 and sec. 23, considering the historical context and the evolution of these provisions. It noted that sec. 13 specifically deals with loss by pilferage, while sec. 23 pertains to loss or destruction in a broader sense. 4. Referring to the judgment of the Delhi High Court, the Tribunal disagreed with the interpretation that sec. 23 should cover cases of deprivation of goods prior to physical clearance. It emphasized the need to give effect to both sec. 13 and sec. 23 by restricting sec. 23 to situations other than pilferage and applying sec. 13 in cases of specific provisions for pilferage. 5. The Tribunal also addressed the argument regarding the presence of a Customs Officer during the survey and the principle of Estoppel. It clarified that the presence of an officer does not bind the Government to accept findings that contradict the statutory provisions. 6. Ultimately, the Tribunal rejected the appeal, concluding that the claim for refund of duty on shortages was barred by sec. 13 of the Customs Act, 1962, as the discovery of non-availability of goods occurred after the clearance order was issued by the Customs officer. 7. The judgment highlights the importance of statutory interpretation, legislative intent, and the application of specific provisions in cases of pilferage or loss of goods under the Customs Act, 1962.
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