TMI Blog2017 (3) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Therefore, even though exempted at the time of import, a demand can be raised when the conditions are violated. In the instant case, department has raised the duty demand for the reason that appellant did not fulfill the conditions of the notification. Then the question arises, under the circumstances, whether appellant has to pay the duty or can be granted remission of duty. Section 23 when read as a whole (i.e., with both subsections and the proviso) it is clear that there is no pre-condition to pay the duty before claiming remission. It would be meaningless to call upon the assessee who has lost the goods imported, to pay the duty and then request for remission of the same. The Section would then be of no purpose. The Law makers in their innate wisdom has used the word remission and not refund, adjustment or rebate. The rejection of remission of duty ₹ 21,52,512/- is unjustified - appeal allowed - decided in favor of appellant. - E/1018/2012 - A/30114/2017 - Dated:- 19-1-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Shri. B.V. Kumar, Advocate for the Appellant. Shri. Arun Kumar, Deputy Commissioner (AR) for the Respondent. ORDER The facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .V. Kumar, submitted that the FIR dated 23.12.2008 as well as the case closing report (regarding fire accident) of the Sub-inspector of Police establishes that the accident occurred due to fire caused by short circuit. The appellant had informed the accident and requested for remission of duty on damaged equipments/goods along with relevant documents. The department issued the Show Cause Notice raising two contentions. Firstly, that the goods were not used for intended purpose, and secondly, that appellant failed to fulfill export obligation. He adverted to the Order-in-Original and submitted that the adjudicating authority after considering the facts of the case had applied the dictim laid in the case of M/s. Sami Labs Ltd., Vs. CC, Bangalore [2007 (216) ELT 59 (Tri.-Bang.)]. That the goods having been destroyed before clearances for home consumption, Section 23 of the Customs Act, 1962 would apply in regard to the goods imported, and the appellant ought to have been granted remission of duty on the goods. The goods valued at ₹ 59, 614/-was procured indigenously and in regard to these goods which were destroyed, Rule 21 of the Central Excise Rules would be applicable. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or complying with the interim orders passed by Honorable High Court. That in such a back ground the Honorable High Court had made observation that remission cannot be allowed. The Ld. Counsel relied upon the decision in the case of CC, Bangalore Vs. Symphony Services corporation India Pvt. Ltd. , [2012 (275) ELT 369 (Kar.)] to bring out the object as well as the intention of Section 23 which deals with remission of duty. The judgment laid in the case of M/s. Next Fashion Creators Pvt. Ltd, Vs. CC, Bangalore [2006 (206) ELT-1015 (Tri. - Bang.)] was relied to canvass the proposition that remission of duty is to be granted in the situation when capital goods imported with benefit of exemption of duty under the Notification No. 52/2003 were destroyed by fire. That in the said judgment the Tribunal has distinguished the judgment laid in the case of Pasupati Overseas Pvt. Ltd., Vs. CC [1996 (88) ELT 795 (Tri.) which was another decision relied by Commissioner (Appeals) in the impugned order to reject the remission of duty. 4. Countering the above arguments, the Ld. AR, Shri. Arun Kumar, submitted that the appellant having not used the goods for the intended purpose and also hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods in a warehouse under section 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon: Provided that the owner of any such imported goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being inforce. 7. Sub clause (1) of Section 23 lays down that in order to claim remission it is to be shown to the satisfaction of the officer concerned, that the imported goods have been lost or destroyed by fire at any time before clearances for home consumption. Undisputedly the goods were in bonded warehouse and have been destroyed before clearance for home consumption. 8. The main ground for rejecting remission is that the appellant did not put the goods into the intended use for which they were imported and also that they did not fulfill the export obligation in terms of the notification. The Cd. Counsel has submitted that after import, the capital goods were put to use by appellant till they were destroyed in fire. The appellant had fulfilled export obligation of 16 crores prior to the occurrence of fire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The said Section 13 as well as Section 23 are contained in Chapter V of the Customs Act, 1962 which deals with 'Levy of, and Exemption from, Customs Duties'. Section 13 deals with duty on pilfered goods. For better appreciation Section 13 is reproduced as under: Section 13 in the Customs Act, 1962 13. Duty on pilferred goods.-lf any imported goods are pilferred after the unloading thereof and before the proper Officer has made an order for clearance for home consumption or deposit in a warehouse, the importer shall not be liable to pay the duty leviable on such goods except where such goods are restored to the importer after pilferage. 11 . The above Section deals with situation of remission of duty when goods are lost by pilferage. Section 23 deals with remission of duty when goods are lost otherwise than as a result of pilferage. The Oxford dictionary meaning of remission is 'cancellation of a debt, charge or penalty'. The word used in Section 23 is remission' and not 'refund'. Neither does Section 13 nor Section 23 state that in order to claim remission the duty has to be first paid by the assessee. The goods when imported under not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authorities the factum of the goods being lost or destroyed and seek for remission of the duty payable under the Act. If the goods are there but it is of no use and the assessee wants to abandon the goods, then the request should be for relinquishment of the title to such goods. Once such a relinquishment of title to the goods is made by the assessee then the said goods become the property of the Department and as a consequence of which no duty is payable by the importer. Therefore, the finding recorded by the original authority as well as the Appellate Commissioner that the case falls under Section 22 and not under Section 23 proceeds on a mis-conception of these provisions. When once it is admitted that the entire goods imported has been rendered useless because of seepage of water, the assessee is entitled to claim remission of the entire duty payable on the said goods imported. As the goods is not lost or destroyed, the assessee made a request for relinquishment of the title to the goods with the intention of abandoning the same. By such abandonment and relinquishment, the title in the imported goods is divested and the title vests with the Department. The Tribunal on a prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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