1984 (6) TMI 248 - AT - Customs

Summary

Issues:
1. Refund of customs duty paid on missing consignments.
2. Interpretation of Section 23(1) of the Customs Act, 1962.

Analysis:

Issue 1: Refund of customs duty paid on missing consignments
The case involved two appeals by M/s. Philips India Ltd. regarding the refund of customs duty paid on missing consignments - one case of Stamping Paste and two Pallets Polyacetal Moulding Powder. The consignments landed but were found missing while in the custody of the Port Trust Authority. The appellants applied for refund, which was initially rejected by the Assistant Collector and confirmed by the Collector (Appeals) due to lack of supporting documents. The appellants argued that the consignments were missing before they could take delivery, supported by certificates from the Port Trust Authority and a letter from the Dy. Manager. The Tribunal considered the evidence and ruled that the loss occurred while the goods were in the custody of the Port Trust Authority, entitling the appellants to claim a refund of the duty paid.

Issue 2: Interpretation of Section 23(1) of the Customs Act, 1962
The Respondent Collector argued that the appellants failed to prove theft or pilferage before the out of charge order was passed, thus no refund was permissible under Section 13 of the Customs Act, 1962. Additionally, it was contended that the claim under Section 23(1) was impermissible without evidence of total loss or destruction. The Tribunal, however, noted that the consignments were lost before the amendment of Section 23 in 1983. Referring to a previous decision, the Tribunal held that Section 23(1) applies when goods are lost while in the custody of the Port Trust Authority and theft or pilferage occurred before actual delivery. The Tribunal interpreted the term "lost" broadly, encompassing loss or destruction by any means. As the evidence showed the loss while the goods were in custody, the Tribunal concluded that the appellants were entitled to a refund of the duty paid.

In conclusion, the Tribunal allowed both appeals, directing the appellants to receive consequential relief within four months from the date of the order.