TMI Blog1992 (9) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... teel scrap by different vessels and paid customs duty on the invoiced quantity. The steel scrap loaded in lorry/truck was weighed in the Madras Port Trust weigh-bridge which issued weighment certificate showing the quantity cleared. Since the quantity cleared was less than the quantity for which the appellant had paid duty, the appellant claimed refund of duty in respect of such short delivered goods under the provisions of the Customs Act, 1962, the Act for short. The appellant s claim was rejected under the impunged order out of which the present appeals arise. The appellant filed revision application before the Govt. of India under Section 129DD(1) of the Act, as amended and the revision authority returned the papers holding that the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Act contemplates refund only under Sections 13 23 and while Section 13 of the Act would cover pilferage. Section 23 would be applicable only in respect of loss or destruction of goods other than pilferage. In the present case, short supply cannot be construed to be goods either lost or destroyed coming within the mischief of Section 23 of the Act. 5. I have carefully considered the submissions made before me and considered the entire records and evidence. For the purpose of convenience, I extract below the details of BE Nos., the qty. covered by BE, the quantity delivered against each BE, etc. given by the appellant: BE Nos. Qty. covered by BE Qty. delivered according to weighment Madras Port Trust Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 is applicable if the importer s goods are pilfered after unloading and before the proper officer has made an order for clearance for home consumption, and in such a situation, the importer will not be liable to pay any duty on such pilfered goods. Section 23 deals with the circumstances for grant of remission of duty of the goods lost or destroyed or abandoned and this is without prejudice to the provisions of Section 13 aforesaid. Under Section 23, if the goods have been lost, otherwise than as a result of pilferage, or destroyed any time before clearance for home consumption, the Assistant Collector of Customs, shall remit the duty on such goods. In the present case the factual position is that the importer did not receive the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been disposed of in the auction is not supported by any notice which is required to be issued by the custodian under the provisions of Section 48 of the Customs Act. Hence we are led to conclude that in so far as the appellants are concerned, the goods have been lost to them and they were lost in the custody of the custodian, before clearance for home consumption. Even if it is a case of theft or pilferage in the custody of the custodian. Section 13 would be available in this case; because the non-availability has been noticed even before examination of the goods. Delay in payment of duty cannot take away the benefit under Sec. 13 or Section 23 of the Customs Act. Because the importer has to pay for the demurrages for the period of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also acquired by reasonable inference. On the basis of the above, I hold that the case in question is clearly covered by the provisions of Section 23(1) of Customs Act, 1962 and the appellants are clearly entitled for remission of duty in respect of these goods as it is established that the same were lost before clearance, under circumstances beyond the control of the appellants . In my view the connotation of the expression lost occurring in Section 23 of the Act has to be construed to be comprehensive so as to embrace a situation of this kind for the purpose of doing justice in a situation where the importer has not admittedly received the full quantity of the goods for which he had paid duty. Such an interpretation would be in conso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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