TMI Blog1993 (2) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... nded in the CWC Warehouse on 5-10-1983. Thereafter the dispute was carried upto the level of Collector (Appeals), when it was finally decided by the Collector (Appeals) on 16-4-1985 and the appellants decided on debonding the goods. However, due to heavy rains in the month of June 1985, the CWC Warehouse was affected and the goods bonded there were also affected. The appellants received a letter dated 5-7-1985 from CWC for surveying the goods deposited by them in the Warehouse. The survey was done by the Insurance Company of C.W.C on 12-10-1985. Thereafter the appellants Customs House Agent wrote a letter to the Assistant Collector (Docks) on 17-8-1985 requesting for survey by the Customs before payment of duty. for ascertaining the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Sec. 23(2) of the Customs Act, liability to pay duty cannot be extinguished and hence no refund is admissible to them, since the abandoning has been done after the out of charge order is given. Hence the present appeal before the Tribunal. 3. After hearing both the sides and also perusing the documents through which I was taken, I observe that even before the payment of duty on 9-9-1985, the appellants through their C.H.A. requested for a survey by Customs by their letter dated 17-8-1985, followed by another letter dated 22-8-1985. However, the survey was not done and it was refused, as is evident from the letters. Hence the extent of damage, which ought to have been determined in terms of Section 22 of the Customs Act has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Customs area, the benefit of Section 23(1) of the Customs Act will be available. But then Shri Jain, the Ld. JDR points out that for applying Section 23(1) of the Customs Act, the goods should be totally destroyed or should have been lost. In this case, the carton is very much there and it is only found to be damaged. The argument is no doubt attractive on the face of it, but when the consignment as a whole, was found to be useless for the purpose for which it is imported, it amounts to a total loss to the importer and in that view the goods are lost to them. Moreover, even if the Customs had carried out the survey with regard to one carton uncleared as per their earlier request before payment of duty, this position would have been n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
