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TMI Blog1987 (6) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... of Chapter X procedure, demand was raised against them holding that the appellants had failed to establish that remission of duty was warranted in respect of the unaccounted consignment, since they had not proved beyond doubt that the goods had been destroyed by unavoidable accident. Before the adjudicating officer, the appellants had taken the plea that the wagons containing the excisable goods had been lost in transit. The appellants have submitted that when the goods were lost being under the control of the Railway authorities, no duty could be recovered from them. It has been submitted that the Assistant Collector had erred in equating the words lost and destroyed used in Rule 196. He had failed to appreciate that because of the us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case i.e. where the tank wagons are misplaced and the appellants have been deprived of the goods for no fault of theirs. So far as the consignee namely the appellants are concerned, goods are deemed to be lost and the case of loss is beyond their control, the expression lost or destroyed ........ by unavoidable accident during transport occurring in Rule 196, according to the learned advocate, will cover the cases of loss despite reasonable care by the consignee. Misplacement of wagon causes loss to the consignee on account of all reasonable care taken by the consignee. Even if it is held that the reasonable care is required to be taken by the transporter of the goods to avoid loss of goods during transport, it is to be assumed that the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and control over the movement of wagons is kept, misplacement of a wagon can be avoided. The term misplacement itself implies that something has been wrongly placed and not readily traceable. Goods remain, however, within the custody of the transporter i.e. Railway authorities. It is also beyond comprehension that an entire wagon - lock, stock and barrel - would be stolen away. All the rail tracks in the country are practically within the control of the Railway authorities. There is no possibility therefore, of whisking away a railway wagon. Ratio of the judgment relied upon by the learned advocate would not apply to the facts of this case. 6. It was also understood during the course of hearing if the goods were not given to a consignee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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