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TMI Blog2005 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the Supreme Court decision in the case of S.K. Patnayak [ 1999 (12) TMI 60 - SUPREME COURT] relied on the by the learned SDR is concerned, we find that the said decision was rendered in the context of section 27 of the Bihar Orissa Excise Act, 1915. In our view, this decision would not relevant in the present case which is covered by Section 23 of the Customs Act, 1962. The reliance of the Commissioner (Appeals) on Section 72(d) is not correct. The Section 72(d) imposed a responsibility on the importer who has executed a bond u/s 59 for properly accounting of the goods which were warehoused. We agree with the learned Advocate that the insurance covers risk and is governed by separate enactments. We cannot mix up the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants alleging that the CEGAT decision relied on by the appellants in their claim is inapplicable to their case. It was also mentioned that the goods in question were imported under EPCG scheme and did not satisfy the condition (7) of clause 2 of notification 111/95-Cus., dated 5-6-1995. The insurance claim included customs duty demand which was to be paid by the insurance company and hence the refund was liable for rejection. The Original authority rejected the refund claim. The appellants approached the Commissioner (Appeals) who upheld the order of the Original authority. Hence the appellants have come before the Tribunal for relief. 3. Shri K.S. Ravi Shankar, learned Advocate appeared for the appellants and Shri K.S. Reddy, learned JDR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable. (viii) The adjudicating authority manifestly erred in relying on the decision of the Supreme Court in the case of S.K. Pattanaik v. State of Orissa [2000 (115) E.L.T. 9 (S.C.)] and quoted the same out of context in his order to illegally support the rejection of a valid refund claim. The said decision related to excise duty on liquor in the nature of CVD (countervailing duty) and secondly the said decision held that the liability to CVD does not get wiped out, because the goods were imported into India. The said case, it is humbly submitted did not deal either with section 22 or 23 of the Customs Act. The said case related to State levy of Excise on liquor, and not customs duty. The ratio of the above decision ought not to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 would not be applicable to the warehoused goods. He re-iterated the orders of lower authorities. 6. We have gone through the records of the case carefully. In the present case, the goods imported under the EPCG scheme were warehoused. However before the clearance from the warehouse, the goods were completely destroyed by fire accident. The appellants paid the duty and interest demanded by the Revenue but later filed the refund claim. The Commissioner (Appeal) has not examined the entitlement of remission of duty on the goods destroyed in the light of section 23 of the Customs Act, 1962. He has relied on the decision of Tribunal in the case of Pasupathi Overseas Pvt Ltd. v. CC, Madras [1996 (88) E.L.T. 795]. The learned Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case which is covered by Section 23 of the Customs Act, 1962. The reliance of the Commissioner (Appeals) on Section 72(d) is not correct. The Section 72(d) imposed a responsibility on the importer who has executed a bond under Section 59 for properly accounting of the goods which were warehoused. In the present case, the goods were destroyed by fire even before their clearance for home consumption. The learned SDR made the point that the appellants have claimed insurance which includes Customs duty. Hence they would not be entitled for remission. The learned Advocate submitted that the insurance claim does not include duty and even if it includes duty in terms of the Tribunal decision in the case of Welspun Terry Towels (supra), the insuran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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