TMI Blog1997 (1) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... laced an order with the supplier in Japan for supply of spares for vertical roller mill in its cement factory. The consignment was shipped in 3 packages, and was cleared from Bombay on payment of duty. Subsequent appellant noticed that some items were short and had the goods examined by a Chartered Engineer who certified in June, 1989 that the goods were short. It then took up the matter with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 23 of the Customs Act. It does not follow from this, as he contends, that there is no provision for refund under the Act, and the importer s remedy lies in civil court. Obviously no Customs duty is payable on goods which have not been imported, when goods are short shipped, they obviously would not have been imported into India on the date of which refund was claimed therefore, if duty was erro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 23, would have application only to the situation contemplated in these sections. In the absence of any such provision in the law, the finding of the Collector (Appeals) that refund cannot be sanctioned solely for the reasons that the goods were out of Customs charge cannot be upheld. All the decisions cited by the advocate for the appellant in fact related to situations where the goods had alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were not kept for survey but were consumed shortly after they were inspected by the Chartered Engineer, goes against the appellant. The locus standi of the Chartered Engineer is not clear. As against this, the appellant is a large industrial house, and the amount of refund involved is less than Rs. 1.00 lac. The goods appear to have been supplied by the manufacturer of the original equipment wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient evidence to show that the goods were short shipped and were subsequently supplied free of charge. Therefore, appellant was entitled to refund on the duty paid on the short shipped the goods. 5. I therefore allow the appeal. Refund shall be sanctioned and paid to the appellant, if permitted by law. 6. It would not be necessary for me to repeat that this decision has been arrived at on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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