1996 (4) TMI 342 - AT - Customs

Summary

Issues:
1. Claim for refund in respect of shortages found during examination of goods at the behest of Customs authorities.
2. Compliance with Public Notice 109/90.
3. Association of Customs officials during goods examination.
4. Filing of a police complaint for refund eligibility.
5. Consideration of refund claim under Sections 13 and 23 of the Customs Act, 1962.

Analysis:

1. The appeal contested the rejection of the refund claim by the CC (Appeals), Madras, concerning shortages discovered during goods examination initiated by Customs authorities. The CC (Appeals) based the rejection on non-compliance with Public Notice 109/90, as examination lacked Customs officials' presence and involvement of steamer agents.

2. The appellant's counsel argued that the examination was conducted as per their request, highlighting damages and missing contents, contradicting the CC (Appeals)'s assertion. The counsel emphasized the lack of association of AC (D) during the examination and the absence of a police complaint, contending that the refund eligibility should not hinge on a police report per Section 13 of the Customs Act, 1962.

3. The SDR acknowledged the Customs authorities' involvement in the examination but stressed the non-compliance with Public Notice 109/90 as a barrier to refund approval. However, the SDR recognized the Customs authorities' role in noting the shortages, contrary to the lower authority's claim.

4. Upon review, the Tribunal found merit in the appellant's arguments. It noted the appellant's proactive approach in seeking examination upon detecting damages, with the expectation for examining officers to inform AC regarding shortages. The Tribunal deemed the appellant not at fault for PN 109/90 non-compliance. While acknowledging the failure to file a police complaint, the Tribunal deemed it non-fatal to the refund claim, especially as shortages did not result from short landing, aligning with Sections 13 and 23 of the Customs Act, 1962.

5. The Tribunal criticized the CC (Appeals) for not correctly assessing the case facts, leading to the order's inadequacy. Consequently, the Tribunal set aside the impugned order, remanding the matter for fresh adjudication by the CC (Appeals) in adherence to the law.