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TMI Blog2005 (4) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... in the petitioners' bonded warehouse, by restraining the respondents, their servants and agents from taking any action against the petitioners in pursuance of letter dated 3-2-2004 (Annexure "L"); (4) An ex-parte ad-interim relief in terms of Para 12(C) above may kindly be granted; (5) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted." 2. Having heard Mr. Paresh M.Dave, the learned advocate for the petitioner and Mr. Jitendra Malkan for the respondents, it is apparent that, considering the nature of goods involved, the petition is required to be heard and disposed of finally. Hence, rule. Mr. Malkan waives service of rule. 3. The petitioner, a partnership firm, is trading in Marine Stores and in course of conducting the said business, imports various goods including Beer, Whisky, Cigarettes etc. for supplying such goods to foreign going vessels. Such goods are allowed to be imported free of duty on the condition that they are to be supplied as stores to outward bound vessels. Under Section 58 of the Customs Act, 1962 (the Act), an assessee is entitled to deposit dutiable imported goods in a li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communicated to the petitioner that the request for deputing an officer for destruction of stock of expired beer cannot be granted and called upon the petitioner to pay the duty and interest as mentioned in earlier letter. 6. It appears that the petitioner once again approached respondent No. 3 and vide communication dated 3rd February 2004, respondent No. 3 informed that the request to destroy the bonded goods and remission of duty could not be considered as there was no specific order in this regard by the Tribunal. In response, on 10th February 2004, the petitioner once again wrote to respondent No. 3 inviting attention to provision of Section 23(1) of the Act and reiterated its request, as according to the petitioner, it was entitled to destroy the said goods and seek remission of the duty in the circumstances. 7. Mr. Dave, the learned advocate appearing on behalf of the petitioner submitted that the aforesaid facts went to show that not only no case is made out for seeking any duty, but assuming any such duty was leviable, the petitioner was entitled to have the same remitted along with permission to destroy the goods.That the respondent authorities were acting contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to the petitioner as the petitioner has not contravened any provisions of the Act, Rules or Regulations or not committed any breach of the conditions of the license, so as to attract provisions of section 58(2)(b) of the Act. Once the Tribunal had recorded the aforesaid findings, and they have become final, it is apparent that the reason for which the goods could not be removed from the licensed private bonded warehouse, did not survive. However, by passage of time, in the interregnum i.e. between the time when the license was cancelled by the Commissioner and the cancellation was set aside by the Tribunal, the goods, by their very nature, had become unfit for human consumption. The petitioner was, therefore, entitled to make a claim under the provisions of Section 23(1) of the Act, which reads as under : "23. Remission of duty on lost, destroyed or abandoned goods - (1) Without prejudice to the provisions of section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods have been lost (otherwise than as a result of pilferage) or destroyed, at any time before clearance for home consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even depreciation and when a party is dispossessed of a thing, either when it can never be recovered or when it is withheld from him he is deemed to suffer the loss." "13. ..... The corresponding provision in the old Customs Act, 1878 was sub-section (1) of Section 122, which reads as follows : "If any goods in respect of which a bond has been executed under Section 92 and which have been cleared for home consumption are lost or destroyed by unavoidable accident or delay, the Chief Customs Officer may in his discretion remit the duties due thereon: Provided that, if any such goods be sold or destroyed in a private warehouse, notice thereof be given to the Customs Collector within forty-eight hours after the discovery of such loss or destruction". In the Bill proposing the present Act, clause 23 dealt with the subject and the note on the same read as follows : "Sub-clause (1) replaces existing Section 122. Under the existing section remission of duty is permissible only if goods are lost or destroyed by unavoidable accident or delay. Under the revised provision remission of duty may be allowed in all cases where goods are lost or destroyed whatever may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 23(1) of the Act, the petitioner having shown that the requirement of the said provision stands satisfied in facts of the case. 13. The respondent authorities have not disputed that the goods have deteriorated to such an extent that they have become unfit for human consumption. In fact, respondent No. 3, after having called for the details as to expiry date, lot-wise and brand-wise, has remained silent and has assigned no reason why the petitioner should not be permitted to destroy the goods physically under supervision of a proper officer. To the contrary, after obtaining those details on record, respondent No. 3 has called upon the petitioner to make payment of duty with interest without specifying under which provision the duty is being demanded. It is necessary to reiterate and take note of the fact that the imported goods were stored in a licensed bonded warehouse and in case the goods were exported, no duty was payable on the same; duty would become payable only in the event of the goods being taken out of the warehouse for the purposes of human consumption. The petitioner has not even sought to take the goods out of the warehouse for the purposes of home consumption. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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