1983 (8) TMI 300

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..... Vijayaraghavan, Departmental Representative for the respondent, the Tribunal makes: the following order: 3. The appellants claimed refund of duty of ₹ 16,983.96 paid on part of the goods covered by Bill of Entry No. D 853 dated 16-6-81 covering one case of components for Bulldozers, imported by S.S. VISHVA AMBAR in June 1981. In the refund application it was stated that even though the pass order (an order for clearing goods for home consumption by the proper officer in terms of Section 47 of the Act) was obtained earlier, the goods were physically removed from the Port Trust Custody after conducting a survey which . brought to light the shortage in the case. The claim was rejected by the Assis-\ tant Collector of Customs, Refunds .....

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..... e of Department prior to such an order was a physical impossibility; that condition should not be pressed against the appellant. We find that the wording of Section 13 is categorical. If the appellants wanted to safeguard their interests it was open to them to have presented the bill of entry for clearance of the goods after the arrival of the vessel or not to have got it finally assessed or got the order for clearance for home consumption after appropriate examination instead of without it. Having availed of the facility of assessment and obtaining an order for clearance at an earlier date, it would not be open to the appellants to claim that they are prejudiced by the action and should be protected against it. 5. It was urged that in t .....

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..... further strength to our earlier view that what is covered under Section 23 is a case of irretrivable loss other than pilferage. In fact, the occurrence of the word lost in the Section with the words destroyed suggests that the relevant goods are not physically available for use/consumption by any person whatsoever. Hence, the liability of the goods to duty is itself given up. In the present case there is no evidence that the goods have been irretrivably lost, in the sense that they are non-existent at the relevant time. 6. Our attention was drawn to a certificate issued by the Madras Port Trust under its No. L. Dis. I-3/386/4166/82-TC dated 19-4-1982 showing that of the three cases imported with the marks and nos. Asstt. Controller .....

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