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Issues:
Appeal against rejection of refund claim for shortages found during examination of goods; Compliance with Public Notice 109/90; Association of Customs officials during examination; Requirement of filing a police complaint for refund; Consideration under Sections 13 and 23 of the Customs Act, 1962. Analysis: The appeal before the Appellate Tribunal CEGAT, Madras was lodged against the decision of the CC (Appeals), Madras, which dismissed the appellant's claim for a refund concerning shortages discovered during the examination of goods by Customs authorities. The CC (Appeals) based its ruling on the non-compliance with Public Notice 109/90, emphasizing that the examination was not conducted in the presence of Customs officials or steamer agents. The CC (Appeals) deemed the refund claim inadmissible due to this procedural lapse, leading to the rejection of the appeal. During the appeal hearing, the appellant's counsel argued that the examination of goods was indeed carried out at the appellant's request, and discrepancies were noted by the authorities. The counsel contended that the CC (Appeals) erred in stating that the examination was not done before Customs officials, highlighting a lack of proper consideration by the lower appellate authority. Additionally, the appellant's failure to involve AC (D) in the examination and the absence of a police complaint, as required by Public Notice 109/90, were raised. The counsel asserted that the absence of a police complaint should not be detrimental to the refund claim, as it is not a statutory prerequisite under Section 13 of the Customs Act, 1962. Alternatively, the appellant sought consideration under Section 23 of the Customs Act, emphasizing that the shortages were observed while the goods were under Customs and Port Trust authorities' custody. The Respondent's representative acknowledged that Customs authorities conducted the examination but maintained that non-compliance with Public Notice 109/90 precluded granting the refund. However, the Respondent conceded that the assertion made by the lower authority regarding the examination not being conducted before Customs officials was incorrect, as evidence indicated otherwise. After evaluating both parties' arguments, the Tribunal found merit in the appellant's contentions. It was established that the appellant promptly reported the damaged packages and sought examination, with shortages duly noted. The Tribunal opined that the appellant should not be faulted for the procedural lapse related to Public Notice 109/90, as the examining officers were responsible for informing AC about the shortages. The Tribunal also underscored that the absence of a police complaint, while a failure on the appellant's part, should not invalidate the refund claim if other refund criteria were met. Consequently, the Tribunal set aside the CC (Appeals) order, deeming it improper, and remanded the matter for fresh adjudication in line with the law. In conclusion, the Tribunal's decision highlighted the importance of procedural compliance, the role of Customs officials during examinations, and the statutory requirements for refund claims under the Customs Act, 1962. The judgment emphasized the need for a comprehensive assessment of facts and adherence to legal provisions in refund matters involving goods examinations and shortages.
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