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TMI Blog1984 (2) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Collector of Customs to transfer 200.00 metric tonnes of Bright Stock Product which had already been warehoused from IOBL Storage Tank No. S-3 at Trombay to HPC(VMU) Storage Tank No. 215 located at Hay Bunder Installation, Sewree, by road through tank lorries. During the course of transfer operations one of their tank lorries loaded with 9.301 MTs. of the goods met with an accident. As a result of this unavoidable accident the tank plate got ruptured and the entire product of 9.801 MTs. was spilled over the road. The appellants have stated that they reported this matter to the Central Excise Officials supervising the receipt of bonded cargo at Hay Bunder, Sewree. Simultaneously they informed the police station and the fire brigade. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia, A.I.R. 1977 S.C. 957 to state that the appellants are not estopped from making an application for refund even though they had given an undertaking to bear the transfer losses. The assessee s right to claim refund on proper interpretation of law cannot be whittled down merely because the appellants had given an undertaking to bear the transfer losses. Such an undertaking would not cover a case where the goods had been lost due to unavoidable accident. Shri K.R. Venkatraman, appearing on behalf of the appellants has further stated under the provisions of Section 23(1) of the Customs Act, right to claim refund cannot be taken away on account of the undertaking which was given for effecting bond to bond transfer. He has also referred to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Delhi in the Civil Writ No. 647 of 1968, 1979 E.L.T. (J329) in the matter of Sialkot Industrial Corporation, Meerut v. Union of India and Another. The Hon ble Delhi High Court has ruled that the expression lost or destroyed in Section 23 of the Customs Act, 1962 is used in generic and comprehensive sense and not in a narrow sense. This would cover losses by whatsoever reason, whether theft, fire, accident, pilferage. In the present case, the shortage has occurred as a result of spill over of the contents of the tank on the road and this would constitute loss within the meaning of Section 23 of the Customs Act, 1962. Shri Venkatraman also referred in this connection to the decision of the Bombay Regional Bench in the matter of Bharat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave given careful consideration to the submissions made by both the parties. The goods in this case had been warehoused under the provisions of Customs Act, 1962 and were subject to the control of the Customs Authorities. These were permitted to be removed from one warehouse to another under the provisions of Section 67 of the Act, subject to the conditions prescribed in this behalf by the Assistant Collector. Section 67 provides for the owner of any warehoused goods, with the permission of the Customs authorities to remove the goods from one warehouse to another without payment of duty, subject to such conditions as may be prescribed for the due arrival of the warehoused goods at the warehouse to which removal is permitted. The conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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