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TMI Blog1992 (2) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. - Making the submissions on the Reference Application Shri Venkataraman, ld. Counsel submitted that the Tribunal's order was not correct in holding that the claim of .the applicant for relief by way of rebate on damaged cargo of cement under Section 22 of the Customs Act, 1962 was not maintainable because the Customs Authorities were not associated with the survey conducted regarding the damages to the cargo. In this context the ld. Counsel submitted that unloading is always under the supervision of Customs which is clear from a perusal of the provisions of Section 34 of the Customs Act, 1962. He also relied upon the case law reported in the case of "International Auto Suppliers v. Collector of Customs, Bombay' reported in 1985 (21) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore their examination under Section 17, on account of any accident not due to any willful act, negligence or default of the importer. According to sub-section (2) thereof the duty to be charged is to be proportionate to the duty chargeable on the goods before the damage or deterioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration. Such an exercise of proportionate rebate of duty has to be on the basis of evaluation of the damage by the proper officer. Where the proper officer is not associated with the evaluation of damage, the Customs Authorities are right in denying the remission of duty under Section 22, urged the ld. DR. The DR further contended that Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e damaged or deteriorated goods bears to the value of the goods, before the damage or deterioration. (3) For the purposes of this section, the value of damaged or deteriorated goods may be ascertained by either of the following methods at the option of the owner - (a) the value of such goods may be ascertained by the proper officer; or (b) such goods may be sold by proper officer by public auction or by tender, or with the consent of the owner in any other manner, and the gross sale proceeds shall be deemed to be the value of such goods." This Section in similar circumstances came up for decision by the East Regional Bench in the case of "Agfa Gevart India Ltd. v. Collector of Customs, Calcutta reported in 1985 (21) E.L.T. 510(Trib); in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made applicable to a case where the assessment of damage is not done before clearance by the Customs Authorities. This is so because of the fact that the provisions of Section 22 would show that the Customs Authorities have to ascertain the salvaged value of the damaged portion of the goods in working out the duty abatement. This Section had also come for consideration by the Supreme Court in another context in the case of "All India Glass Manufacturers' Federation v. Collector of Customs", reported in 1991 (55) E.L.T. 5 (SC). The Supreme Court after setting out the provisions of Section 22 of the Customs Act, 1962, observed that "it is necessary for the importer to prove to the satisfaction of the proper officer that the goods at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d make one of the Sections nugatory whereas it is evident that the legislature in its wisdom has made separate provisions for covering these two contingencies on imported goods. It is well-settled law that such an interpretation making statutory provisions nugatory is to be avoided. The decision of the West Regional Bench relied upon by the Applicants is that of a single Member and related to Section 23 of the Act whereas the decision of the two Member Bench of East Regional Bench (cited supra) related to the very same Section 22 of the Act and the facts are similar to the present case. In the result we hold that no points of law arise out of the Tribunal's order calling for reference to the High Court. The Reference Application is accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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