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TMI Blog2021 (9) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... from both these provisions is clear that the goods lost or destroyed permanently will never see the market of home consumption but the pilfered goods shall come to the market thus resulting into evasion of such duty. 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 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 - the out of charge order i.e. order for clearance for home consumption was given on 18 May, 2011. Pilferage was noticed after the joint survey which was conducted on 23 May, 2011 i.e. after the said OOC was passed. It will not Section 23 which deals only with the permanent loss or damage to the goods that too before OOC but section 13 as shall be applicable which deals only with respect to goods pilfered but only if pilferage is noticed prior OOC. None is the fact of the present case. Neither duty exemption under Section 13 of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing No.12/2019-20 dated 08.04.2019 has rejected the appeal. Still being aggrieved the appellant is before this Tribunal. 2. I have heard Shri Ravinder Pal Jindal, learned Advocate for the Appellant and Shri Ravi Kapoor, learned Authorized Representative for the Respondent. 3. It is submitted on behalf of the appellant that the shortage was detected at the time of joint survey conducted before the Customs and other related authorities such as, Shipping-line, CHA, Surveyor and Party Insurance Surveyor on 23.05.2011. It is impressed upon that the presence of all these authorities is sufficient to hold that the pilferage took place before the actual clearance of goods for home consumption. The refund claim filed in terms of Section 23 of the Customs Act cannot be rejected on the ground that the out of charge order has already been issued and that the pilferage has been noticed after the said order. It is also mentioned that the pilferage was noticed by the importer on 18.05.2011 itself i.e. on the day when out of charge order was passed. This fact sufficiently indicates the greater possibility of pilferage to have taken place before the out of charge was given. Learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 for clearance of Tin Ingots imported by him. The bills were assessed on the same day itself. Appellant deposited the requisite duty on 18.05.2011 (17.05.2011 being a holiday). On 18.05.2011 itself the goods were given out of charge from Customs without inspecting the container and without subjecting the goods to any examination. It was only at the time of loading i.e. 19.05.2011 that the appellant found that the container was not at the proper place as per the location assigned to it by CONCOR. It is on 20 th May, 2011 that appellant applied for joint survey of his container to the Shipping line as well to the CONCOR. Pursuant whereto a joint survey was conducted on 23.05.2011 noticing the shortage in the goods on account of pilferation. With these admitted facts that the appellant had filed his refund seeking remission of the duty already paid by him in terms of section 23 of the Customs Act, 1962. Section 23 reads as follows:- Section 23 : Remission of duty on lost, destroyed or abandoned goods - (1)Without prejudice to the provisions of Section 13, where is shown to the satisfaction of the Assistant Collector of Customs that any imported goods have been lost (other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Does not lie on importer as it comes during examination of Officer. Onus is upon the importer to prove. Time of occurrence After unloading but before order of clearance. Before clearance for home consumption. 6.2 Above comparison makes it abundantly clear that Section 23 deals with a situation of complete loss or destruction of the imported consignment either in whole or in part and is not applicable to a loss which is not complete but is on the account of pilferation. It is Section 13 which specifically refers to loss by way of pilferation. It is also abundantly clear that for applicability of both the Sections the loss or destruction/pilferage should have occurred prior the order of clearance for home consumption is passed. Since, the appellant has taken a plea that the shortage was noticed on the date of order for clearance itself remission be allowed, it is important to appreciate the meaning of clearance of goods for home consumption. Section 47 defines the same as follows:- SECTION 47. Clearance of goods for home consumption. – (1) Where the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited in warehouse and cleared at a later time as is mentioned in Section 49 of the Customs Act, 1962. In that case, the collection of Customs Duty will be deflected till duty on such goods is paid for them to be cleared for home consumption. The Revenue for the Government is safeguarded by the importer executing a bond binding himself in a sum equal to twice the amount of duty assessed on the goods at the time of import. It becomes clear that the payment of duty is the stage for the order of out of charge and thus, amounts to be the stage for clearance of goods for home consumption. Hence, the idea of physical clearance of goods is irrelevant for the purpose. 7. Further, I observe that the common thing for section 13 23 is the time of applicability of these provisions i.e. after the unloading of the imported goods but before the proper Officer makes an order for clearance of imported goods for home consumption. Thus, the importer is not liable to pay the duty on the goods if pilfered during this period (as per Section 13). Similarly, importer shall be liable for remission of duty for the goods if lost and destroyed during this period, but not for the pilfered goods. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable which deals only with respect to goods pilfered but only if pilferage is noticed prior OOC. None is the fact of the present case. Neither duty exemption under Section 13 of Customs Act nor the remission of duty under Section 23 of Customs Act is available to the appellant. The question of refund of duty paid does not arise. 11. Hence, I do not find any infirmity in the order under challenge when the benefit of remission of duty as applicable under Section 23 has been denied to the appellant while rejecting the refund of duty as was already paid by the appellant for the pilfered goods. 12. Coming to the another submission that irrespective of applicability of Section 13 importer was still not liable as the goods were still in the possession of the custodian (CONCOR) even after the order of clearance (OOC) was passed. I am not in agreement with that submission as I am of the opinion that once an out of charge order has been given it will clearly indicate that the customs are no longer interested in keeping the goods and the importers are at liberty to clear the goods. If the importer continues to keep the goods in Custom area under the custody of the custodian, the Legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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