9911796707
TMI Blog1991 (2) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... arently due to loss on account of evaporation. Before taking delivery they requested for 100% weighment of the goods so that they can claim refund later on the losses due to evaporation. However, the goods were cleared after making full payment of duty as per invoice but duty was paid under protest as it was endorsed in the bill of entry at the time of taking delivery on 20-2-1986. Subsequently, they have filed refund claim in respect of duty paid on the quantity of shortage which was noticed at the time of clearance. This refund claim has been rejected by the Assistant Collector as per order dated 25-3-1987 for the following reasons :- (i) The claimants have not applied for remission of duty on account of natural losses - vide Section 70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly erroneous remarks of the Assistant Collector and both the authorities based on that remarks disallowed remission of duty on the ground that it was not a natural loss and allowance in respect of natural loss was covered under Section 70 of the Act. He urged that remission of duty is legally available to the appellants either as lost or destroyed goods under Section 23 or as volatile goods under Section 70 of the Customs Act. He cited the following decisions in support of his contention :- (i) Hindustan Petroleum Corpn. Ltd. v. Collector of Customs, Bombay, 1984 (18) E.L.T.358. (ii) Indian Oil Corporation v. Collector of Customs, Bombay - 1985 (21) E.L.T. 881 (Larger Bench). (iii) Bharat Petroleum Corporation Ltd. v. Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the subject matter in those cases, they were dealt with the same issue of deficiency in quantum of similar volatile goods in the warehouse and ratio is clearly applicable to the facts of this case. We find that three Sections, viz., 13, 23 and 70 of the Customs Act are concerned with the non-payment or remission of duty due to destruction or loss in the imported goods before clearance. Section 13 confined to goods pilfered before the order for clearance for home consumption or deposit in a warehouse and the importer was not liable to pay duty on such goods pilfered. Section 13 is not applicable to this case as it was neither a case of pilfered goods nor caused prior to depositing in the warehouse. Section 23 provides for remission of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 23 of the Customs Act as it was rightly argued by the appellant s counsel. In the view we have taken we hold that appellants are entitled to claim remission of duty due to shortage which was noticed at the time of clearance. Since the issue was not considered on merits in determining the quantum of refund but it was rejected at the threshold of premissibility, we feel that this matter will have to go back to concerned Assistant Collector to examine the case in determining the quantum of refund. The matter is remanded accordingly, as it was pronounced in the open court on 7-2-1991. 9. [Assent per : S.K. Bhatnagar, Member (T)]. - I observe that in this case the Assistant Collector has described the loss due to leakage vide para 1 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of loss due to leakage. He has further emphasised that the refund was claimed only subsequently and not at the time of remission. 15. I observe in this connection that the application dated 19-2-1986 as well as the bill of entry dated 21-2-1986 referred to weighment of barrels in view of losses due to evaporation for claiming refund of the Customs duty paid. In the circumstances it is not clear as to on what basis the Assistant Collector has come to the conclusion that the loss was not due to evaporation but due to leakage. He has referred to the bad conditions of the barrels. However, neither a copy of the examination report nor any other documents (such as enquiry/investigation report) has been filed before us by the department or sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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