2001 (3) TMI 359 - Commissioner - Customs

Summary

Issues:
- Refund claim rejection based on unsubstantiated evidence
- Customs association with survey and CBR form signing by Steamer Agent
- Shortage of goods and justification for refund

Refund Claim Rejection:
The appeals were filed against Orders-in-Original rejecting refund claims as unsubstantiated. The appellant imported EPIKURON 135F (Lecithin) in damaged and empty drums, leading to a shortage of goods. The Lower Authority rejected the refund claim stating the shortage occurrence was not proven while under Custodian or Carrier control. The appellant argued the Customs Officers' report alone should suffice for determining the loss before clearance. The appellant emphasized liability for duty only on cleared goods and not on the lost quantity. The appellant also highlighted that payment to the foreign supplier was irrelevant to the shortage issue due to damage, settled by the underwriter.

Customs Association and CBR Form Signing:
The Customs rejected the refund claims citing issues such as Customs not being involved in the survey, the CBR Form lacking the Steamer Agent's signature, and the Port Trust not responding to the shortage demand. The appellant clarified that an independent surveyor conducted the survey with permission from the Deputy Commissioner (Docks), negating the claim of Customs non-association with the survey. The appellant questioned why the Customs officers did not require the Steamer Agent's presence during CBR Form signing and why the form was issued if incomplete.

Shortage of Goods and Justification for Refund:
The examination reports revealed spillage and damage in the imported drums, leading to a shortage of goods. The Customs issued the out-of-charge order after examining the consignments and noticing the shortage. The appellant's claim was supported by Customs documents showing the shortage observed while the goods were in the Customs area. The absence of a response from the Port Trust to the shortage notice did not justify rejecting the refund claims. The judgment directed granting the refund to the appellant without unjust enrichment concerns, emphasizing the need for Modvat availment verification before refund sanctioning.