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TMI Blog1983 (9) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed the claim on two grounds :- (a) Sub-section (1) of Section 22 of the Act provides for abatement of duty on damaged goods where it is shown to the satisfaction of the Assistant Collector that any imported goods had been damaged at any time after the unloading thereof in India but before their examination under Section 17, such abatement is mandatory, the manner of determination of chargeability to duty being in accordance with sub-section (2) of that Section. Sub-section (3)(a) provides that the value of such damaged goods may be ascertained by the proper officer. It is not expressly laid down in the Act that the ascertainment of the value of the goods should be prior to their clearance from customs control or while the goods were in the custody of customs. (b) Alternatively the counsel urged that in terms of Section 23 when goods have been destroyed any time before their clearance for home consumption, the Assistant Collector shall remit the duty on such goods. He claimed that in the facts and circumstances of the present case, the two dumpers have been so badly damaged that they should be considered as "destroyed" for purposes of this Section. 3. The Departmental Represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing, crushing, bending and breakage" and the cause of the damage as "falls or blows received whilst in transit". Though a team of technical staff and officials constituted by the management of the appellant company (Inspection Committee) gave a finding, "There is no possibility of repairing and utilising the two damaged SKDs and these have to be considered as a total loss and the claims with the Insurance Company may be proceeded accordingly." The Insurance Survey Report observed as follows : "During our inspections, we found that since the damage to both the units were extensive and similar, it would not be possible to assemble even one unit by interchanging the undamaged components, but economical repairs appeared to be a possibility at that stage of inspection. Major assemblies like engine, transmission, final drive, hoist and hydraulic suspension system were mostly intact and as the value of these assemblies were substantial, we felt that the possibility of economical repairing has to be analysed first. From the external visual inspection we felt that major assemblies had not suffered any appreciable damage and that if necessary, the suspected parts could be dismantled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the surveyors discussed the matter with the appellant-company) and after obtaining the differential amount involved, released a cheque for U.S. dollar 6,40,640/- the rupee equivalent of which being Rs. 62,07,801.60 at that time.\ 6. From the above resume, it is clear that the damage was ascertained by the surveyors by inspection of the imported goods, a few months after their date of clearance from even Port Trust premises and after a transit by lorry from the Port area in Madras to K.G.F. in Karnataka had taken place. Economical repairs was considered a possibility but was given up as being limited by the practical situation existing in respect of the specialised equipment in the country and the fact that the appellant-importer was the only one who would be interested in any part of the goods even if salvaged. Even the price of the salvaged goods had been negotiated at some length; one gets the impression that the Insurance Company got what would be the best of a bad bargain and settled the claim for the damaged goods as a 'constructive total loss'. 7. To take the second contention of the advocate of the appellants first: Sec. 23 refers to remission of duty on goods which have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scertained by either of the following methods at the option of the owner : (a) The value of such goods may be ascertained by the proper officer, or (b) such goods may be sold by the proper officer by public auction or by tender and the gross sale-proceeds shall be deemed to be the value of such goods." "45. Restrictions on custody and removal of imported goods :- (1) Save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption...... (2) The person having custody of any imported goods in customs area....... (a)........ (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer." "47. Clearance of goods for home consumption :- where the proper officer is satisfied that......the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r officer on his own, or (ii) sale of the goods by public auction or tender. Obviously the latter proviso would ensure that the proper officer does not over-value the goods. If he does so, the owner of the goods can ask for sale by auction or tender. This option would also indicate that the goods must be under the control of the proper officer at the time of ascertainment of value; as otherwise it would not be open to him to offer the goods for sale in auction or by tender. We also note that Section 149 provides that no amendment of a Bill of Entry (which would include an amendment in respect of the value declared therein at the time of entry of the goods in the Custom House) can be made after imported goods have been cleared for home consumption except on the basis of documentary evidence which were in existence at the time the goods were cleared. This provision also suggests that ordinarily the value of the goods is to be determined before clearance and if at all there is any need to amend the value for the purposes of claim of refund and the like, the claim has to be examined in the light of contemporaneous evidence existing at the time of clearance of the goods. Any valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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