2005 (11) TMI 151 - AT - Customs

Remission of duty - goods imported under the EPCG scheme - Warehoused goods - before the clearance from the warehouse, the goods were completely destroyed by fire accident - HELD THAT - In the present case, there is ample evidence to show that the imported goods have been destroyed before their clearance for home consumption. The various case laws cited by the learned Advocate would show that the remission of duty is available where the goods are destroyed before their clearance for home consumption. As regards the Supreme Court decision in the case of S.K. Patnayak 1999 (12) TMI 60 - SUPREME COURT relied on the by the learned SDR is concerned, we find that the said decision was rendered in the context of section 27 of the Bihar Orissa Excise Act, 1915. In our view, this decision would not relevant in the present case which is covered by Section 23 of the Customs Act, 1962. The reliance of the Commissioner (Appeals) on Section 72(d) is not correct. The Section 72(d) imposed a responsibility on the importer who has executed a bond u/s 59 for properly accounting of the goods which were warehoused. We agree with the learned Advocate that the insurance covers risk and is governed by separate enactments. We cannot mix up the provisions of the Customs Act with Insurance Act to deny the benefit specifically provided under Customs Act, 1962. The present case is squarely covered by section 23 of the Customs Act, 1962. The Order-in-Appeal has no merit. Hence we set aside the impugned Order-in-Appeal and allow the appeal.

Summary

Issues:
- Appeal against Order-in-Appeal No. 283/2003 regarding refund claim for duty and interest paid on goods destroyed in fire accident at CWC.
- Applicability of Section 23 of the Customs Act, 1962 to remit duty on imported goods destroyed before clearance for home consumption.
- Interpretation of relevant legal provisions by lower authorities and reliance on case laws.
- Argument regarding misapplication of Supreme Court decision and Section 72(d) of Customs Act.
- Consideration of insurance claim in relation to remission of duty on destroyed goods.

Analysis:
1. Refund Claim Issue: The appeal was filed against Order-in-Appeal No. 283/2003 concerning a refund claim for duty and interest paid on goods destroyed in a fire accident at CWC. The appellants imported goods under the EPCG scheme, which were destroyed before clearance for home consumption due to a fire accident. The Range Superintendent directed duty payment for the destroyed packages, which the appellants paid along with interest. Subsequently, they filed a refund claim amounting to Rs. 10,23,655/-, which was rejected by the lower authorities, leading to the appeal before the Tribunal.

2. Applicability of Section 23: The key argument revolved around the applicability of Section 23 of the Customs Act, 1962, which deals with remission of duty on goods lost or destroyed before clearance for home consumption. The appellants contended that the duty should be remitted as per this provision. The Tribunal analyzed the case in light of Section 23 and relevant case laws, emphasizing that remission of duty is available when goods are destroyed before clearance for home consumption, supporting the appellants' claim.

3. Interpretation of Legal Provisions: The learned Advocate highlighted various legal provisions, including Sections 22, 23, and 27 of the Customs Act, to support the appellants' case. It was argued that the lower authorities failed to consider these provisions adequately, leading to an erroneous rejection of the refund claim. Additionally, the Advocate cited relevant case laws such as Ganpati Enterprises and Winsome Yarn Ltd. to strengthen the argument for remission of duty on destroyed goods.

4. Misapplication of Supreme Court Decision: The Tribunal addressed the misapplication of a Supreme Court decision by the lower authorities, emphasizing that the decision in question was not relevant to the present case governed by Section 23 of the Customs Act, 1962. The Tribunal also clarified that the reliance on Section 72(d) was incorrect, as it pertains to goods not properly accounted for in warehousing situations, which was not applicable in this case of goods destroyed before clearance.

5. Consideration of Insurance Claim: The learned JDR argued against remission of duty based on the appellants' insurance claim, contending that inclusion of customs duty in the insurance claim would disqualify the appellants from remission. However, the Tribunal agreed with the learned Advocate that insurance claims are governed separately and should not affect the remission of duty under the Customs Act. The Tribunal upheld the appellants' entitlement to remission under Section 23 and allowed the appeal, setting aside the impugned Order-in-Appeal.