1987 (6) TMI 62 - HC - Customs

Summary

Issues:
1. Refund of Customs duty paid on missing goods.
2. Application of Sections 13 and 23 of the Customs Act.
3. Consideration of equity in the refund claim.

Analysis:
The petitioners imported materials, and upon arrival, suspected damage and missing contents in one of the cases. A preliminary survey confirmed the damage and missing items. Subsequently, a detailed survey at the factory further verified the loss. The petitioners claimed insurance and applied for a replacement import license, which was granted by the Government. They then sought a refund of the Customs duty paid for the missing goods under Section 27 of the Customs Act, 1962. However, their application was rejected, stating that the Customs Officer was available when the shortages were detected, but no examination was requested. The Government's final order detailed the events and rejected the refund claim. The petitioners argued that the claim could have been considered under Section 13 read with Section 23 of the Customs Act.

The Court noted that the factual dispute regarding the shortage on specific dates was not agreed upon by the Government. As such, the Court could not entertain a writ petition in such circumstances due to the factual nature of the issue. The respondents did not accept the position that the shortage occurred before clearance for home consumption. The Court emphasized that in matters of equity, if the Government exercises discretion based on special circumstances, a writ court would not interfere. It was suggested that the petitioners should accept the loss as part of their business wear and tear. Consequently, the petition for a refund was rejected, with no costs imposed.

In conclusion, the Court dismissed the petition seeking a refund of the Customs duty paid on missing goods, citing a lack of agreement on the factual occurrence of the shortage and emphasizing the principle of equity in the Government's discretion. The Court held that in cases of equity, where special circumstances exist, interference by a writ court is not warranted. The petitioners were advised to accept the loss as part of their business operations, leading to the rejection of their refund claim.