9911796707
TMI Blog2000 (5) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the premises of the Port Trust which was marshy. The soil in this area could not take the weight of these heavy coils and subsided, with the result that 26 coils sank into the ground. The Port Trust was apparently able to recover 15 coils out of that. The remaining coils could not be located despite efforts made by the respondent to dig out part of the land for which it has billed Rs. 4,50,000/- by the Port Trust. Meanwhile the importer had already paid the duty assessed on the entire consignment in the bill of entry filed for its clearance. It has now filed a claim for refund in terms of Section 23(1) of the Act of the duty paid on 11 coils not delivered. The claim for refund was barred by limitation as it was beyond six months. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed the appeal and set aside the Asst. Commissioner s order. The appeal by the department is now before us. 3. The essential ground in this appeal is that the entire consignment has been delivered to the importer as evident of the out-turn return of the Port Trust. This averment ought to be supported by attacking the various finding of the Commissioner (Appeals). It is also contended that the goods must be considered to have been cleared for home consumption under Section 37 of the Act and it is not necessary for the department to establish to deny the claim under Section 23 of the Act physical delivery to the importer. The Departmental Representative emphasises these grounds. 4. The Port Trust s out-turn report indicates that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we persuaded by the requirement of the Departmental Representative that satisfaction of the Asst. Commissioner regarding the loss of goods can only be obtained by survey. It is entirely beyond our understanding how survey of an open area will lead to satisfaction in any regard. The survey might be necessary in case of remission of duty under Section 22 to determine the extent of damage or detention to goods. Whatever the practice, the law does not require any survey and if the Asst. Commissioner is satisfied about the loss, he should sanction the refund. As a matter of fact, the provisions of Section 23(1) will only apply where goods are lost (obliterated items as a result of pilferage). How a survey can establish the non-existence of any g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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