9911796707
TMI Blog1991 (11) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... scraps for use in electric furnace is classifiable under the Customs Tariff Heading 73.03/05, and the rate of duty is nil for import duty as well as the auxiliary duty, vide Notification No. 151/Cus., dated 15-7-1977 and No. 107/79 dated 10-5-1979 respectively subject to the condition that such imported scrap is in Tact used in the Electric Arc furnace and the proper officer is satisfied to that extent. In this case as per terms and conditions of the notifications, prior to the clearance of the goods the party filed a bond with the Assistant 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 quantity not proved to the satisfaction of the Assistant Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. appearing for the Revenue pointed out that this issue is settled in favour of the Department in the very appellants case as per Order No. C/119 to 124/91-B.2 dated 26-4-1991 reported in 1991 (56) E.L.T. 778 (Tri.), and following the ratio of the said decision this appeal is liable to be dismissed. 4. Shri Willingdon X ian appearing for the party submitted that though the conclusion was not in favour of the party but the ratio/observations made in the said decision are more favourable and relevant to decide the issue in the present case and, accordingly, he drew our attention to para 11 of the said order which reads as under :- 11. As seen from the statutory provision in Section 23 of the Customs Act, for remission of duty on any go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that there is no provision for claiming remission of duty on any goods lost or destroyed when once the goods were cleared. It is imperative that the loss or destruction should be established prior to clearance of the goods for home consumption as envisaged under Section 23 of the Customs Act. It was argued that no allowance on account of factors, such as losses during unloading or draft survey weight being approximate could be made to determine actual weighment in a Survey by a recognised agency. He argued that since no survey was carried out by any approved agency either in the port or immediately after clearance of the goods, subsequent evidence adduced by the appellants cannot be taken into consideration to determine the actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disadvantage of the buyer. However, it cannot be denied that there always exists the possibility of some handling losses occurring during unloading of goods. 9. Section 23 of the Customs Act, 1962 provides for remission of duty on goods which are lost or destroyed. However, such remission is possible under the law only if it is shown to the satisfaction of the proper officer that the imported goods were lost or destroyed at the time prior to their clearance for home consumption. However, having regard to the lack of facilities for weighment of bulk consignments in certain ports or the difficulties experienced by the trade in arranging the weighment of goods under Customs supervision, in several cases as referred to by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd survey was also taken in the sea. The quantity was made out of Customs charge was accepted by the party and same was done in their presence. We do not find any objection to the quantity at the material time or at the earliest. The observations made by the Assistant Collector in his order that in the present case the first survey has been conducted by M/s. Errison Richards (Gujarat) and the subsequent survey has been conducted by M/s. Metcalf Hodkinson (P) Ltd. The second survey report is dated 3-12-1979 which formed the basis for the amendment of the I.G.M. quantity second time. The second survey issued an addendum to the survey report dated 3-12-1979 as late as on 14-8-1980 stating quantity should be taken as approximate. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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