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TMI Blog2013 (1) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... ost or destroyed at any time 'before clearance of goods' for home consumption. Unlike sub-section (2), this subsection does not use the expression 'before an order for clearance of goods' for home consumption has been made. Obviously, there is a distinction between 'an order for clearance for home consumption' and 'clearance for home consumption', inasmuch as in our opinion, the latter expression postulates actual clearance of the goods for home consumption from the Customs custody after an order for clearance for home consumption is made. Therefore, the assessee are entitled to 'remission of duty' paid on the goods lost or destroyed by fire at any time before physical clearance of the goods for home consumption. In favour of assessee Doubl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicated authority, who rejected the claim of remission of duty but the first appellate authority granted the claim for remission of duty and against which, the Revenue has preferred an appeal before this Tribunal. 2. The learned DR appearing on behalf of the Revenue submitted that in this case, though the 'out of charge' was given on 07.10.2008, the importer could not clear the goods as the goods were destroyed by fire at Universal Logistics warehouse on 09.10.2008. Therefore, the respondents are not entitled to claim remission of duty as held by the Tribunal in the case of reported in T.N.S.S. Steels Pvt. Ltd. Vs Commissioner of Central Excise, Trichy reported in 2001 (131) E.L.T.609 (Tri.-Chennai). He further submitted that as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the 'out of charge', was given on 07.10.2008 and the actual fire took place only on 09.10.2008. In such a scenario, it has to be determined as to whether the claim for 'remission of duty' is admissible to the respondents or not. 5. Section 23 of the Customs Act, 1962 deals with the situation of 'remission of duty', which is reproduced herein as under:- "Section 23 Remission of duty on lost, destroyed or abandoned goods: (1) without prejudice to the provisions of Section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of customs that any imported goods have been lost (otherwise than as a result of pilferage) or destroyed, at any time before clearance for homes consumption, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for home consumption is made. Thereafter, it was held that the assessees are entitled to 'remission of duty' paid on the goods lost or destroyed by fire at any time before physical clearance of the goods for home consumption." 7. I had perused the order of this Tribunal in the case of T.N.S.S. Steels Pvt. Ltd. (supra) and the said view was taken by the Tribunal in the year 2001 and the Hon'ble High Court of Delhi had dealt with the issue in 2003. Moreover, the decision of the Hon'ble High Court is binding on us. Therefore, ground number (i) i.e., 'out of charge' was given on 07.10.2008 and the fire took place on 09.10.2008, the 'remission claim' is available to the respondents and argument advanced by the learned DR is not sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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