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TMI Blog2001 (8) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... r duty remission. Such being the case, the person, warehousing the goods, was held as responsible for loss and he is liable to pay duty under Section 72(d) of Customs Act and hence Section 23 does not cover "theft" and following the ratio of judgment of Hon'ble Madras High Court rendered in the case of Golden Hills Estate v CCE, Madras - 1997 (90) E.L.T. 301 the claims were rejected. 3.The ld. Consultant Shri Kumarasamy submits that the circumstances of loss "includes theft, as the imported duty free goods were in the bonded warehouse and in the joint control of the appellant and the Customs Department, therefore, the loss of goods by theft is covered by Section 23 of the Customs Act and hence they are entitled for remission. He submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper officer has made the order for clearance for home consumption and to deposit the goods in warehouse. He submits that the appellant are entitled for benefit of rebate claim and they seek for allowing the appeal. 5.Ld. DR Shri A. Jeyachandran points out to the Section 23 of Customs Act and submits that the remission is available only to the goods which are lost and destroyed and abandoned other than those lost as a result of pilferage. Hence the Section 23 clearly excludes the loss by theft. Therefore the judgment of Hon'ble Madras High Court rendered in the case of Golden Hills Estate although is rendered under Rules 147 of C.E. Rules, but it has bearing as said Rule also deals with loss of goods. Therefore, appellant do not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced as follows : - "Only ruling which supports the contention of the appellant is that of the Calcutta High Court referred to above. With due respect we are unable to agree with the reasoning found in the judgment of the Calcutta High Court. In our opinion the word unavoidable accident is of crucial importance. Theft cannot be said to be an accident by any stretch of imagination. When a person deliberately removes the goods for his own purposes without the knowledge of the owner thereof it cannot be said to be 'an accident' [Nor] is it unavoidable as the owner should have taken proper steps and care to protect his goods and make them immune from the theft. Hence, Rule 147 of the Central Excise Rules, 1944 does not contemplate loss of go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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