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TMI Blog1992 (5) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... Bills of Entry, on the ground that the goods have been damaged as per the Insurance Survey Report, which have been conducted prior to the clearance of the goods for home consumption from the customs area and hence proportionate duty involved with regard to the value of damages noticed is refundable to them and the claims were rejected by the Assistant Collector and the said order was upheld by the Collector (Appeals), in appeal. 3. Shri R. Parthasarathy, the Ld. Adv. for the appellants, submitted that the Collector (Appeals) has considered the claims only in the context of Section 22 of the Customs Act. However, it is his submission that the claim is also required to be considered under Section 23 of the Customs Act, which refers to goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this judgment of the Supreme Court was given in the context of the Sea Customs Act with regard to the loss. On a query by this Bench, as to whether any re-examination was sought for, before the clearance of the goods for home consumption and whether any claim for abatement of value with regard to duty chargeable was made, he replied that no such claim was made and they filed the claim for refund based only on the Insurance Survey Report. 4. Ms. Lipika Majumdar Roy Choudhury, the Ld. SDR, on the other hand, contended that Section 22 of the Customs Act deals with the specific situation arising out of abatement of duty on account of damage, deterioration of the goods and in such a case, the duty has to be charged in accordance with the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia Glass Manufacturers Federation reported in 1991 (55) E.L.T. 5 (S.C.) = 1991 (36) ECR 161 SC, where the Supreme Court has held that reassessment for abatement of duty is permissible, only where damage/deterioration of goods before clearance can be proved in terms of Section 22 of the Customs Act. 5. After hearing both the sides, we are to take note of the plea of Shri R. Parthasarathy, the Ld. Adv. that he is not claiming the refund of duty in terms of Section 22 of the Customs Act. His plea is only for consideration of the refund claim in terms of Section 23 of the Act. Under Section 23, the Assistant Collector of Customs shall remit the duty on goods lost or destroyed, at any time before clearance for home consumption, otherwise tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s view of the matter, we find that the mandatory provision of Sec. 22 cannot be ignored, even if we choose to interpret the term loss occurring in Sec. 23 of the Act, as interpreted by the Delhi High Court in the case of Sialkot Industrial Corpn. (supra). We also are to observe that the Delhi High Court examined the issue with regard to pilfered goods, where part of the quantity was lost and not available for clearance. Here the admitted position is that the entire quantity of goods, as per the Bills of Entry have been cleared for home consumption and no part of the goods was lost to them. Their claim is that some goods have deteriorated in value. This claim should be established by proper examination and value predetermined as per the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Sec. 23 provides for remission of duty on lost, destroyed or abandoned goods. The aspect of abandonment is not a matter at issue. 3. Significantly, the Legislature has used words damaged and deteriorated in Sec. 22 and lost and destroyed in Sec. 23, and when these words are specifically used, each one is intended to convey specific meaning attached to them and one cannot say that one is just a synonym for the other. 4. In Mitra s Legal and Commercial Dictionary (3rd Edition, P. 249), it is mentioned that destruction is a change in the nature and utility of the article which is complete and which is accompanied by the leaving of the traces that are altogether useless. Deterioration is change for worse, the remains being still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rically declared his claim to be not under Sec. 22 of the Act, no further discussion is called for on the issue. However, it is clear that provisions of Sec. 23 cannot, in such a case, stand attracted. If the claim was under Sec. 22 of the Act, a further question also would have cropped in namely, whether abatement is permissible on deterioration after import, as the word deteriorate is used only in clause (a) and not used in clauses (b) and (c) of sub-section (1) of Sec. 22, and clause (a) deals with damage or deterioration at any time before or during the unloading of the goods in India . One may have to, on some appropriate occasion, examine the issue whether deterioration after import is also intended to be covered under Sec. 22. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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