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TMI Blog1984 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. On 10-5-79 the Bombay Port Trust docks reported that the entire consignment of 46 pallets had landed in the docks, out of which 5 pallets were not available for delivery. On 26-9-79 the appellants made an application for refund of the proportionate duty of ₹ 32084.00 in respect of undelivered 5 pallets. The Assistant Collector of Customs, MCD, rejected the refund application on the ground that the appellants have not produced any evidence to show that the goods were lost or have been destroyed within the meaning of the Customs Act, 1962 (hereinafter to be referred as the Act ) and as such the claim cannot be considered under Sec. 23 of the Act. He further held that the relevant Section of the Act under which a claim on landed but missing goods can be considered is Section 13 of the Act. Since the appellants have failed to establish that the pilferage had taken place before the Out of Charge order in respect of the consignment was made and since the duplicate Bill of Entry disclosed that the Out of Charge order has been given for the entire consignment, he rejected the refund claim. In appeal the Collector (Appeals) Bombay, rejected the claim on the ground that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded in India. The whole lot was inspected and examined by the Customs Authorities and a Out of Charge for delivery was ordered on 30-4-1979 after collecting the requisite duty of customs amounting to ₹ 2,95,172.95. In the said circumstances, it cannot be said that the imported goods were pilfered after the unloading thereof and before the proper officer had made an order for home consumption, and as such, the authorities below were justified in rejecting the claim. Shri Gidwani further submitted that the appellants refund claim cannot fall under Sec. 23(1) of the Act inasmuch as there was no proof that the imported goods have been lost or destroyed. On the other hand. there was material to show that the imported goods, namely, 5 pallets were stolen. Therefore, it is a case of pilferage and not loss or destruction. and as such squarely fell within the ambit of Sec. 13 and not 23(1). 6. We have carefully considered the submissions made on both sides. The short point for our consideration is whether the refund claim of the appellants is admissible under Sec. 23(1) of the Act. 7. As has been stated earlier, the Assistant Collector as well as the Collector (Appeals) have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) reads : (1) After an importer has entered any imported goods under Sec. 46 or an exporter has entered any export goods under Sec. 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any leviable on such goods shall, save as otherwise provided in Sec. 85 be assessed. Sec. 23. Remission of duty on lost, destroyed or abandoned goods- (1) Where it is shown to the satisfaction of the Assistant Collector of Customs that any imported goods have been lost or destroyed, at any time before clearance for home consumption, the Assistant Collector of Customs shall remit the duty on such goods. (2) The owner of any imported goods may at any time before an order for clearance of the goods for home consumption has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon. Sec. 45. Restrictions on custody and removal of imported goods- (1) Save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the scheme of the Act it is clear that situation contemplated under Sec. 13 is prior to the assessment. Sec. 23(1) comas into operation subsequent to the assessment. It provides for remission of duty on lost, destroyed or abandoned goods. In order to claim remission under Section 23(1) the importer has to satisfy the Assistant Collector of Customs that the imported goods have been lost or destroyed at any time before physical clearance of the goods for home consumption. Sec. 13 however, does not cast any burden on the importer to satisfy the Assistant Collector of the pilferage. The essential difference between the situations Contemplated under Sec.13 and 23(1) are : (1) Under Sec. 13 the importer is not made liable to pay the duty leviable on the imported goods which are pilfered after the unloading, but before the proper officer has made an order for clearance for home consumption. But in order to claim remission under Sec. 23. duty should have been paid by the importer. (2) Under Sec. 23(1) the burden is cast on the importer to satisfy the Assistant Collector of Customs that imported goods have been lost or destroyed at any time before physical clearance of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) includes the loss to the owner and the loss may be either due to destruction or pilferage or theft or any other reason. The view taken by Shri Gidwani find support in the decision reported in 1983 E.L.T. page 653 [Customs, Excise Gold (Control) Appellate Tribunal] Bharat Electronics Ltd. v. Collector of Customs, Madras. The South Regional Bench of the Tribunal in the said case disagreeing with the view of the Delhi High Court in Sialkot Industrial Corporation Case (1979 E.L.T. 329) held that in a situation where the goods are not available at the time of delivery and the non-availability is not due to physical destruction or loss, but due to theft pilferage and the like, the provisions of sec. 13 should prevail. 11. The view canvassed by Shri Bhave, however, finds support in the judgment of the Delhi High Court referred to above. The Delhi High Court in great detail considered the meaning of the word lost in Sec. 23(1) of the Act. It relied on the Dictionary meaning and also on the decisions of the High Court of Punjab, Bombay, Andhra Pradesh and the Supreme Court. The decision of the Supreme Court relied upon by the Delhi High Court is the one reported in AIR 1960 S.C. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivation of goods prior to their physical clearance for home consumption, this would obviously cover all cases wherein there is deprivation of property because of pilferage during the period upto the passing of an order for clearance by the authorised Customs Officer. In this view, Sec. 13 would become redundant. Thereafter, the Bench observed that the circumstances leading to the enactment of Sec. 23 had been canvassed before the Delhi High Court, but circumstances leading to the enactment of Sec. 13 were not canvassed. After referring to the legislative history and after setting out Sec. 13 the said Bench observed : It will thus be seen that the Government started with the intention of fixing responsibility for payment of duty on the goods pilfered. In deference to the recommendations of the Select Committee, the provision was amended to confine liability of the importer to a period of time after the Customs Officer makes an order for clearance of the goods. It is relevant to note that the Customs will cease to have control over the goods after an order for clearance is passed. Thus, liability to duty on pilfered goods was the subject matter of detailed consideration by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to follow the decision of any 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 Sec. 23(1). The only decision that had been brought to our notice is the decision of the Delhi High Court. Therefore, we are required to follow the said decision. The Delhi High Court has clearly laid down tint the Expression lost or destroyed appearing in Sec. 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. 16. In the instant case the documentary evidence adduced by the appellants established beyond doubt that the goods were stolen when they were in the custody of the Port Trust Authorities, therefore, the appellants became entitled to claim remission. 17. In the above view of the matter we allow this appeal and direct the. Customs Authorities to grant consequential relief to the appellants within 4 months from the date of the receipt of this order. 18. [Order per : G. Sankaran]. - I have perused the order proposed by my l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of pilferage) shall be inserted. The amended provision read thus : Without prejudice to the provisions of section 13, where it is shown to the satisfaction of the Assistant Collector of Customs that any imported goods have been lost (otherwise than as a result of pilferage) or destroyed, at any time before clearance for home consumption, the Assistant Collector of Customs shall remit the duty on such goods. The note on clause 48 of the Finance Bill, 1983 reads as follows :- Clause 48 seeks to amend section 23 of the Customs Act, 1962, to exclude from its purview goods pilfered before their clearance for home consumption. 21. It is thus clear that only with the amendment effected by the Finance Bill, 1983, Section 23(1) of the Act excluded from its purview goods pilfered before their clearance for home consumption, the implication being that in respect of pilferage of imported goods Section 13 alone and not Section 23 is applicable. It would be reasonable to infer that prior to the amendment, Section 23 (1) did not exclude from its purview goods pilfered before their clearance for home consumption. In this view of the matter, I agree with the conclusion reac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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