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TMI Blog2024 (1) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Superintendent of Central Excise, Dindigul, letter dated 01.09.2010 from the appellant to the Superintendent of Central Excise, Theni Range, letter dated 11.10.2010 regarding issuance of Rewarehousing Certificate by the Superintendent of Central Excise-Service Tax, Theni Range addressed to the Deputy/Assistant Commissioner of Customs, Custom House, Tuticorin, and the Survey Reports dated 27.02.2009 and 01.09.2010 by the authorized surveyor, to name a few of the documents, are also forming part of the records of the Revenue. Thus, nothing was hidden nor is there any attempt to play fraud or suppression of any facts on the part of the appellant insofar as the shortage in supply was concerned, which fact was very much within the knowledge of the Revenue. Thus, there was absolutely no scope for the Revenue to assume jurisdiction by invoking the extended period of limitation since any allegation as to fraud or suppression would only be a whim and arbitrary. The Show Cause Notice No. 1/2012 dated 02.01.2012 and the Show Cause Notice No. 05/2012(CE) dated 02.02.2012 have been issued in a haste by invoking the larger period, for which no fresh material or facts were unearthed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvey and de-stuffed most of the containers of coffee beans; the seals of all the containers were intact and that the external condition of those containers was also good. Insofar as one of the containers i.e., container no. FCIU 388295 7 (20 ) is concerned, the same was opened on 19.02.2009; since shortage was found, the said container was not de-stuffed on that day. The above fact appears to have been communicated to their insurer by the appellant, consequent to which the insurer appears to have settled the appellant s claim, less duty since, admittedly, the import was duty-free. 4.1 This prompted the importer to file application for remission of customs duty involved in the short quantity of about 8985 kgs. of coffee beans, but however, they received a Show Cause Notice dated 16.08.2010 from the Revenue proposing rejection of their claim for remission of duty. 4.2 During the course of adjudication, the importer participated in response to the personal hearing granted by the adjudicating authority. It also appears that the importer filed written submission wherein they appear to have indicated that the shortage could have occurred during voyage of the ship, but however, the insura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, apparently did not conduct any investigation as directed by the Commissioner (Appeals), but proceeded to conclude the adjudication proceedings and passed the common Order-in-Original No. MAD-CEX-000-JTC-006-13 dated 28.02.2013. In the said order, the original authority has confirmed the proposed demands in both the Show Cause Notices, ordered confiscation of the goods, valued at Rs.5,66,581/- and Rs.2,68,089/- respectively as per Section 111(o) of the Act and also confirmed penalty under Section 112(a)(ii), as proposed. He also has demanded interest at the proportionate rate under Section 28AB of the Act for non-payment of duty on the short receipt of goods, for the period of delay. 7.2 Aggrieved by the said order, it appears that the importer preferred first appeal before the first appellate authority. The first authority vide impugned Order-in-Appeal No. MAD-CEX-000-APP-297-13 dated 19.12.2013 also having rejected their appeal, the present appeal has been filed before us. 8. Shri P.R. Renganath, Ld. Advocate, argued for the appellant and Shri R. Rajaraman, Ld. Assistant Commissioner, defended the Revenue. 9. After hearing both sides, the only issue that arises for our consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng remission of duty on lost, destroyed or abandoned goods, which is relevant, reads as under:- Section 23. Remission of duty on lost, destroyed or abandoned goods. (1) Without prejudice to the provisions of section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner 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 Commissioner of Customs or Deputy Commissioner of Customs shall remit the duty on such goods. . 13.2 When we apply the above provision to the case on hand, it is clear that the goods undelivered, were not on account of pilferage, or destroyed, and hence, they assume the characteristic of lost , as appearing in Section 23 ibid. 14.1 Be that as it may, the documents placed on record before us clearly reveal that there have been exchange of letters right from 20.02.2009 between the appellant and the Superintendent of Central Excise, Theni Range, and further, the Revenue vide letter dated 31.03.2009 through the Superintendent, sought for explanation from the appellant insofar as the shortage was concer ..... 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