TMI Blog1999 (1) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... cate submitted that the appellants are engaged in the manufacture of Electric Dry Cell Batteries and other items for which Zinc Ingots and other items for which Zinc Ingot is an important input. They entered into a contract with M/s. Metal Distributors (U.K.) Ltd., London for supply of 147.799 M.T. (3616 pieces in 156 bundles). The supplier of the said goods raised an invoice against the appellants dated 29-11-1989 for the said consignment. On the basis of the documents signed by the supplier, a bill of entry was filed by them on 17-1-1990 on prior entry basis. The said bill of entry filed by them for clearance of the above consignment was duly assessed by the Customs Officers and duty was paid by them. The vessel arrived on 24-1-1990. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to clarify as to why they could not deliver the full quantity of the consignment. 3. On the above basis, a refund claim was filed by the appellants with the Assistant Commissioner of Customs on 15-6-1990 for refund of import duty of Rs. 4,41,492.00 in respect of the goods short-landed. Certain documents like Customs Signed Invoice, Packing List, copy of the bill of entry and a certificate from Central Excise Authorities - were asked by the Assistant Commissioner in respect of the refund claim, and which were supplied by the appellants. The refund claim was ultimately rejected by the Assistant Commissioner of Customs vide his impugned order dated 27-11-1991, on the ground that the procedure laid down in Public Notice No. 230/86 was not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bringing this fact of shortage to the notice of the Customs Authorities. He, further, placed on record the public notice referred to by the Assistant Commissioner and argued that the said notice did not have any bearing on the facts and circumstances of the case. As such the reliance by the Assistant Commissioner and consequent rejection of the refund claim on the ground that the procedure laid down therein, had not been followed by the appellants, were not justified. Similarly, he argued that the Commissioner (Appeals) had wrongly observed that it was a case of loss of goods before clearance of the goods for home-consumption, assuming thereby that the goods had landed on the docks, he submitted that the fact was that the goods never reac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods after the same had landed in India. In support of the above submissions, he referred to the various decisions which are to the effect that the Survey Report of the independent Surveyors cannot be ignored by the Customs Authorities only on the ground of non-association of the Customs Authorities in the Survey. He also relied upon the judgments of the Tribunal which were to the effect that the Port Trust Certificate was enough to prove the shortage and in case of short-landing, there is no transport at all and refund of duties in regard to the shortage, has to be granted. He relies upon the following judgments :- (i) 1996 (14) RLT 468 in the case of East Coast Steels Ltd. v. Collector of Customs; (ii) 1995 (9) RLT 194 in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms. As such, their subsequent stand that the goods had landed short was not sustainable. He also relied upon the following decisions :- (i) 1996 (25) E.L.T. 105 (Tribunal) (sic) (Para 6); (ii) 1991 (55) E.L.T. 5 (S.C.); (iii) 1995 (75) E.L.T. 801 (Tribunal). In the circumstances, he prayed for rejection of the appeal. 7. In his rejoinder, Shri Bagaria, learned Advocate submitted that as per the practice prevalent in the Customs House, 100% Pass Out is given even before the actual delivery of the goods. The appreciation of the evidence on record such as various documents issued by the Calcutta Port Trust and their independent Surveyors as also their claim lodged with the various authorities, clearly established that the goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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