TMI Blog1991 (10) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... This is an appeal directed against the order-in-appeal bearing No. 44/91 BCH dated 11-1-1991. 2. The undisputed factual position involved in this appeal as is evident from the orders of the authorities below is recorded in hereinafter : The appellants imported a consignment of machinery spares which arrived as air cargo on 28-11-1989. They filed B/E on 30-11-1989. However, there was a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id appeal was also rejected. Hence, the present appeal is before us. 3. Shri Shah, the ld. advocate on behalf of the appellants, pleaded by referring to the correspondences which they had with the Air India, to show that the Air India had accepted that the consignment was received by flight No. AI-120 on 28-11-1989 and it was received in good condition and taken in to their warehouse. However, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the out of charge order was given. Hence, the benefit should be available to the appellants either under Sec. 13 or Sec. 23 of the Customs Act. 4. Shri Singh, the ld. JDR, for the respondent, submitted that they have taken nearly three months for making the payment of duty and as per the provisions of Sec. 48 of the Customs Act the goods could have been disposed of within 45 days from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, before examination. The Air India has clearly acknowledged non-availability of the goods, which are admittedly received in their custody. Hence, the non-availability could be due to loss on account of theft, pilferage, mishandling or misplacement by the custodian. The custodian s presumption that the goods might have been disposed of in the auction is not supported by any notice which is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. Hence, so long as the conditions laid down under Sec. 13 or 23 of the Customs Act are satisfied and there are evidences to show non-delivery of the goods to the appellants, it has to be construed as a loss in the custody of the custodian and duty remission is to be given. Accordingly, we order that on the appellants furnishing an undertaking that they would pay back the refund amount to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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