9911796707
TMI Blog2002 (7) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of duty before the goods are checked and taken in possession as against the procedure of having the goods checked and duty paid. They further contend that in terms of Section 13, any imported goods which are pilfered after unloading thereof and before the Proper Officer has made an order for clearance for home consumption or deposit in the warehouse, the importer shall not be liable to pay duty, leviable on such goods except where such goods are restored to the importer after pilferage. They have also drawn the attention to Section 23 of the Customs Act which also lays down the provision for remission of duty on loss, destroyed, or goods which are abandoned before the clearance for home consumption and in such circumstances, the Asstt. Commissioner of Customs shall remit the duty on such goods. It is stated that the goods had not been cleared and the Insurance Survey was conducted in the presence of the officials of the custodian of the cargo i.e. IAAI and the survey was also recorded in the Survey Report of IAAI. M/s. IAAI had informed the Customs Officers about the survey being done. They also contended that they had not received any insurance money on the duty paid but only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have also produced a letter dated 16-1-95 of United India Insurance Co. Ltd. which has made payment only with regard to value of the goods but not duty paid by them. Reference is drawn to the Tribunal s ruling rendered in Tajmahal Hotel v. CC, Bombay, 1995 (80) E.L.T. 588, wherein it has been held that remission of duty is permissible under Section 23(1) of the Customs Act, 1962 where the goods were found to be pilfered even after the order for clearance for home consumption is made while the goods are still within the customs area. They have distinguished the case of Himalaya Granites Ltd v. CCE, 2001 (135) E.L.T. 1212 (T) = 2001 (46) RLT 803, wherein the claim for refund was rejected with regard to loss by pilferage in a circumstance where the goods had been kept in a private warehouse which was under the control of the appellant as a licensee. The same was the facts of the case of Golden Hills Estates v. CCE, Madras, 1997 (90) E.L.T. 301 (Mad.). Strong reference is relied on the judgment of the case of Hindustan Petroleum Corporation Ltd v. CC Bombay, reported in 1984 (18) E.L.T. 358 (T) wherein it is clearly laid down that remission of duty is available under the said provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged the duty element but has only discharged the value of the goods being CIF value of lost goods as arrived at in the worked out by their certificate dated 15-7-96 . On a perusal of the certificate and the working out therein, it is clear that the duty element has not been refunded. Therefore, the refund is not hit by the provisions of unjust enrichment. The Sections 13 and 23 of the Customs Act has been fully analysed in the case of Hindustan Petrochemicals Ltd. (supra) and also in the case of Taj Mahal Hotel (supra). It has been clearly held that so long as the goods are still in the custody of customs warehouse, the refund is admissible. In the case of Taj Mahal Hotel, a similar situation arose inasmuch as that the survey was done after the out of charge order was given. However the cartons were very much in the warehouse and had not been cleared for home consumption. The Tribunal clearly held that AC s view that remission cannot be granted under Section 23 of the Customs Act on account of survey having been done after the out-of-charge order had been made is not sustainable. The findings recorded in paras 2 and 3 of the above judgment are reproduced herein below :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is given. Hence in terms of the provisions of Sec. 23(2) of the Customs Act, liability to pay duty cannot be extinguished and hence no refund is admissible to them, since the abandoning has been done after the out-of-charge order is given. Hence the present appeal before the Tribunal. 3. After hearing both the sides and also perusing the documents through which I was taken, I observe that even before the payment of duty on 9-9-1985, the appellants through their C.H.A. requested for a survey by Cus toms by their letter dated 17-8-1985, followed by another letter dated 22-8-1985. However, the survey was not done and it was refused, as is evident from the letters. Hence the extent of damage, which ought to have been determined in terms of Section 22 of the Customs Act has not been done because of the refusal of the authorities to carry out the survey on the reported damage to the goods. Hence the appellants had chosen to pay duty so that the goods could be cleared. However, when a Joint survey by Lloyds and the Customs was done, the Lloyds report clearly indicated that the goods contained in one carton are totally damaged and they are a total loss to them. The Assistant Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
