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TMI Blog1984 (2) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... for the disposal of this appeal are not in dispute. The Consignee, M/s. Government Medical Stores Depot, Directorate General of Health Services, Bombay, imported 1 container (15) drums of Abate Technical from USA Ex. S/S. EXPORT CHAMPION . Alter the first check the goods were cleared on payment of duty. The appellants cleared 14 out of 15 drums on 4-7-1980. Since they found one drum damaged a detailed survey was held on 15-7-1980 under Customs supervision and the survey disclosed a shortage of 208 Kgs. The appellants, therefore, claimed refund of proportionate duty before the Assistant Collector of Customs, M.C.D. The Assistant Collector rejected the claim holding that Section 13 of the Customs Act, 1962 was not attracted inasmuch as the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Collector of Customs, Bombay. Shri J.M. Jain, the learned Departmental Representative contended that the Collector (Appeals) had proceeded on the ground that there was no proof that the pilferage had taken place before an out of charge order was passed, and as such, the appellants claim for refund is unsustainable under Section 13 of the Act. Shri Jain, further, submitted that unless there is evidence to show that the pilferage had taken place before an out of charge order had been passed, the claim under Section 23 also cannot be admitted. Shri Jain also submitted that Section 23 is attracted only when there is total loss or total destruction and in the present case even according to the appellants there was only a loss of some q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re lays down that the loss or destruction must be total as contended by Shri J.M. Jain. Shri Jain no doubt placed reliance on the decision of the South Regional Bench in the matter of M/s. International Clearing and Shipping Agency. I had an occasion to consider the above decision of the South Regional Bench in Appeal No. C.D. (Bom) 22/83, M/s. Hindustan Petroleum Corporation Ltd. v. Collector of Customs, Bombay. I had respectfully disagreed with the view taken by the South Regional Bench. In the said case I had observed if the grant of relief under Section 13 is for the reason that the importer had no control over goods, the situation is not different for granting relief under Section 23(1). Till physical delivery is taken after an order f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to the assessment, the importer is not made liable to pay the duty payable in respect of pilfered goods. (3) The claim for payment under Section 23(1) arises after an order for home consumption is made, but before taking actual physical delivery; whereas under Section 13, the importer is not liable to pay duty for the pilfered goods if pilferage had taken place before an order for clearance for home consumption is made. These distinctions between the two sections is clear from the language employed in Section 13 and Sections 23(1) and 23(2). Both under Sections 13 and 23(2) the importer is not made liable to pay duty if the pilferage/abandonment takes place before an order for clearance for home consumption is made. Section 23(1) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other High Court. If, however, there are conflicting decisions then the Tribunal is at liberty to follow any one of the decisions. Admittedly, there is no decision of the Bombay High Court relating to the interpretation of Section 23(1). The only decision that had been brought to my notice is the decision of the Delhi High Court, and therefore, I am required to follow the said decision. The Delhi High Court has clearly laid down that the expression lost or destroyed appearing in Section 23(1) is not used in any narrow or a particular sense but in a broader sense and includes the loss or destruction caused by whatsoever reason. 7. In the instant case, the documentary evidence produced by the appellants established beyond doubt that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcises and Salt Act, 1944, a Reference against the Tribunal s order would lie to the High Court having jurisdiction over the assessee and the assessing officer and not the High Court in whose territorial jurisdiction the office of the Appellate Authority is situated. While interpreting the analogous provisions of the Income-tax Act which is a per materia to Section 36 of the Excise Act, the Delhi High Court in the case of Birla Cotton Spinning Wvg. Mills v. CIT - 1980 (123) I.T.R. 354 and the Madras High Court in the case of CIT v. S. Shivarama Krishna - 1968 (70) I.T.R. 860 has held the High Court having jurisdiction over the Original Authority, whose order is subject matter of Appeal, is the competent High Court to, hear Reference, irre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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