TMI Blog1991 (8) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of appraisement one of the three packages was found broken and a request was made to the Shed Appraiser to detain this package and release the other two. But at the time of making the request the appellant indicated that the package 1/3 may be detained. It is, however, the case of the appellant that actually the request should have been for package 2/3. The Insurance Survey was conducted for the detained package and the survey report indicates that the package surveyed was 2/3. The survey report also states that the shortage was due to pilferage. Thereafter, the appellant made the relevant refund claim. The refund claim was rejected. Against that order, an appeal was filed to this Tribunal and this Tribunal remanded the matter in terms of Order No. 254/Cal/88 dated 21st July, 1988 holding that the survey report should have been considered and there was no requirement that the Custom House should be present at the time of survey. In so ordering, this Tribunal relied on the decision reported in 1985 (21) E.L.T. 185 (Tribunal). Thereafter, the Assistant Collector rejected the claim. The learned Collector of Customs Central Excise in the impugned order confirmed the same. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Finance Act, 1983 the loss due to pilferage was not covered by Section 23. He pointed out that Section 13 specifically mentions about pilferage. Therefore, Section 13 being specific in this regard it prevails over Section 23 of the Customs Act. He also contended that if Section 23 is presumed to cover cases of pilferage then Section 13 of the Customs Act becomes redundant. In support of his contention he relied on the decision of the South Regional Bench reported in 1985 (21) E.L.T. 249. Shri Biswas also mentioned that these facts were taken into consideration by the learned Collector of Customs and Central Excise (Appeals). He pointed out that in the above cited decision of the SRB they had referred to the decision of the Delhi High Court and had distinguished the same. In the circumstances, it was his submission that the orders passed by the Collector (Appeals) is in accordance with law. He raised a plea that if the refund is allowed, the appellant will get unjust enrichment in this case. Reliance was also placed on the decision of the Tribunal reported in 1990 (50) E.L.T. 322 in the case of Hindustan Motors Ltd. v. Collector of Customs to put forth the plea that in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss results when a thing is destroyed but is also caused when the owner has been made to part with it although the thing remained intact. It was, therefore, held that in this sense, loss means and implies Deprivation . It is synonymous with damage resulting either in consequence of destruction, deprivation or depreciation and when a party is deprived of a thing either he can never recover or when it is withheld from him he is deemed to suffer the loss. Relying on the decision of the Supreme Court reported in AIR 1960 SC 1062 their Lordships of the Delhi High Court came to the conclusion that the words loss or destroyed used in Section 23 of the Customs Act, 1962 prior to its amendment by Finance Act, 1983 included loss due to pilferage. In view of that matter, the WRB of the Tribunal in the case of Hindustan Petroleum Corporation did not follow the decision of the Southern Regional Bench. In this connection, the main argument of the learned SDR is that if Section 23 had included pilferage, then Section 13 was redundant. I am unable to appreciate this argument. There is essential difference between the two sections. Under Section 13 the importer is not liable to pay duty on the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the fact that the Delhi High Court had based their decision on the principles laid down by the Supreme Court reported in AIR 1960 SC 1068. This Tribunal also had taken a similar decision reported in 1985 (21) E.L.T. 185. 5. In the decision reported in 1986 (25) E.L.T. 693 in the case of Herdillia Chemicals Limited v. Collector of Customs, Bombay, the Tribunal bad held in piaras as follows:- 5. I have carefully considered the submissions made on both the sides and perused the records of the case. It is undisputed that the cargo in question is a bulk cargo. The certificate held by M/s. Ericson and Richards (Surveyors) Pvt. Ltd., established beyond doubt that the quantity discharged fell short by 4.680 M.T. from the manifested quantity. The quantity manifested was 285 M.T. Duty was paid on 485 M.T. There was loss of the quantity of 4.680 M.T. Under Section 23 of the Customs Act, prior to its amendment, the appellants could claim refund of proportionate for the goods lost or destroyed. Prior to the decision of the Delhi High Court in Sialkot Industrial Corporation s [1979 (4) E.L.T. (J 329)] case the Custom Authorities were taking a view that the importers are not entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat decision is not applicable to the facts of this case. Moreover, in that case the goods were imported on 13th January, 1986, which is after amendment of Section 23 by Finance Act, 1983. In the present case the goods were imported prior to the amendment of Section 23 by Finance Act and therefore, Section 23 of the Customs Act applies to the facts of this case. 8. In this case the surveyor had given an opinion that the goods were lost due to pilferage. The opinion of the surveyor was relevant and should have been considered by the authorities. In this connection, the learned Consultant relied on the decision of the Tribunal reported in 1990 (48) E.L.T. 300 in the case of Bharat Earth Movers Ltd. v. Collector of Customs. The Tribunal in that case relying on the decision reported in 1989 (20) ECR 293 Bombay in the case of Trans-Asian Shipping Agency Pvt. Ltd. v. CBEC held that the survey report is a relevant piece of evidence and the authorities were bound to consider it. Following the ratio of that ruling the Tribunal granted the refund in respect of the shortages in question on the basis of the survey report. In this case also the survey report is admittedly in favour of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter X of Central Excise Rules, 1944 reads, remission of duty on goods used for special industrial purposes. In such cases goods move without payment of Central Excise duty subject to the stipulated conditions. There is no prior payment of duty and subsequent remission thereof. 11. The difference of interpretation, however, does not come in the way of my agreeing with the decision to allow the appeal holding that refund is admissible under Section 23(1) in the present case, as the import and loss took place prior to the amendment of Section 23 specifically excluding loss as a result of pilferage. The judgment of the Honourable Delhi High Court in Sialkot Industrial Corporation v. Union of India upholds the applicability of Section 23 for pilferage cases also, which decision had been followed by the West Regional Bench in the cases reported in 1984 (17) E.L.T. 425 and 1984 (18) E.L.T. 358, and which had, apparently, not been taken note of by the South Regional Bench in the case reported in 1985 (28) E.L.T. 249. As the case is held by us to be covered by Section 23(1), the contention of Shri Biswas that the order for clearance had been granted by the Customs Authorities for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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