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TMI Blog1991 (4) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 15-7-1977 and from auxiliary duty in terms of notifications issued from time to time. In each case in terms of the conditions of the notifications, prior to the clearance of the goods the importers filed bonds with the Asstt. Collector undertaking to produce an end-use certificate in respect of the cleared melting scrap and to pay basic as well as auxiliary duty on the quantity not proved to the satisfaction of the Asstt. Collector to have used in electric arc furnace. In the end-use certificates obtained by the respondents, the Regional Iron and Steel Controller certified in each case the quantity of melting scrap received in the factory and the quantity utilised in electric arc furnace. Since in each case the quantity certified in the end-use certificate as having been utilised in electric arc furnace was less than the quantity cleared as per the out-turn report, the Asstt. Collector confirmed the demands of duty on the differential quantity. 3. The Collector (Appeals) set aside the orders of the Asstt. Collector on the ground that the loss was less than 1% of the imported quantity and had arisen mainly on account of handling losses during unloading of the goods from ves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cancellation of end-use bond and claimed that in the appellants case even the weighment certificates issued by the competent authority were not accepted by the customs. He stated that having regard to factors such as facilities for weighment of bulk cargo not being available in certain ports the weight based on draft survey being approximate and handling losses during unloading of cargo the appellate authorities had held in a number of cases that the quantity certified on the basis of actual weighment by independent firm of surveyors or Government agencies should be accepted as the imported quantity for the purpose of the end-use bond. In support of his case he placed reliance on the Tribunal s decision in the case of Rollatainers Ltd. v. CC C.E. [1990 (45) E.L.T. 623] and Order No. 602 to 604, dated 21-12-1990 passed by the Collector of Central Excise Customs (Appeals), Ahmedabad in which it had been held that weighment mentioned in the bill of lading on the basis of draft survey being approximate the quantity certified by independent surveyors on the basis of actual weighment on a public weigh-bridge can be accepted for the purpose of discharge of end-use bond executed in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e denied that there always exists the possibility of some handling losses occurring during unloading of the goods. 9. In this regard it is seen that Section 23 of the Customs Act, 1962 provides for remission of duty on goods which are lost or destroyed. However, such remission is permissible under the law only if it is shown to the satisfaction of the Asstt. Collector that the imported goods were lost or destroyed at any time prior to their clearance for home consumption. 10. The respondents have claimed that during the relevant period in Bhavnagar port the Customs authorities were neither issuing any weighment certificates, nor were they accepting the weighment certificates issued by the port authorities. In this regard reference has been made to the letter dated 27-9-1983 addressed by the Asstt. Collector of Customs, Bhavnagar to the firm of Customs House Agents wherein it was stated that for the purpose of cancellation of end-use bonds, the weighment certificates issued by the port authority would be accepted. It can, therefore, be accepted that prior to September, 1983 at Bhavnagar port weighment certificates were not being issued by Customs authorities and certificates iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Bharat Earth Movers Ltd. v. CC, Madras [1990 (48) E.L.T. 300 (Tri.) = 1990 (28) ECR 412 (Cegat SRB)] the Tribunal made the following observations :- The Bombay High Court in M/s. Trans Ocean Shipping Agency case (cited above) has held that the survey report is a relevant piece of evidence and the authorities were bound to consider it............ I am inclined to think that the appellants would be entitled to remission of duty in respect of shortage in question on the basis of the survey report which is admittedly in existence and is in favour of the appellant. In this view of the matter I set aside the impugned order appealed against and allow the appeal with consequential relief. 13. We find from the records of the case that in respect of melting scrap of Iron and Steel imported by the respondents on various dates in 1981 and 1982 there is no evidence in regard to any survey having been carried out by actual weighment either inside the port or on any public weigh-bridge shortly after clearance. 14. It is seen that for compliance of the end-use condition the respondents had obtained in respect of each of the six consignments certificates from the Regional Iro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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