TMI Blog2008 (2) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... . D.M. Mishra, Advocate, for the Respondent. [Order] - This appeal is filed by the Revenue against the Order-in-Appeal No. AT/193/Bel/2007 dated 26-4-2007. 2. Heard both sides and perused the records. 3. The Revenue's contention in this case is that the respondent being a 100% EOU engaged in the manufacture of Diamond Studded jewellery for export, the proper officer is empowered to demand and recover the duty liability, penalty and interest thereon in respect of goods for which a bond has been executed under Section 59 of the Customs Act, 1962. The facts in this case are that the respondent cleared a consignment of studded jewellery for export. The said clearance was escorted by the Custom Officer present in the premises. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bliged to ensure that there shall be no pilferage and pilferage includes theft. Pilferage is a petty larceny i.e. theft of little value or in small quantities. Pilferage can be possibly prevented by reasonable care. In the instant case, goods were being escorted by a Customs Officer. What happened as per FIR recorded by the Police was on an armed robbery by an armed gang of sever persons, who forcibly took away the jewellery after terrorizing and attacking the persons carrying the jewellery. Neither the incidence of robbery nor the veracity of FIR recorded by police is in doubt. One of the robbers was arrested and a part of the consignment was also recovered by Police. Thus, the incident cannot be called pilferage, It was held by the CEST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. It that be so, the question of demand under Section 72(1)(d) will not arise. The Division Bench of the Tribunal in the case of Koeleman India Pvt. Ltd. (supra) has held as under : - "5. We have heard the rival contentions. Section 72 reads as follows :- "SECTION 72 . Goods improperly removed from warehouse, etc. - (1) In any of the following cases, that is to say, - (a) where any warehoused goods are removed from a warehouse in contravention of Section 71; (b) where any warehoused goods have not been removed from a warehouse at the expiration of the period during which such goods are permitted under Section 61 to remain in a warehouse; (c) where any warehoused goods have been taken under Section 64 as samples without p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce no duty can be demanded on the impugned goods under Section 72. It is not disputed that the goods were damaged after the export order was given which is beyond the control of the appellants. It is not the case of the Revenue that the goods manufactured out of the imported goods were diverted for home consumption. In these circum stances, the demand is not sustainable. The appeal is allowed with consequential relief." It can be seen from the above reproduced ratio of the Division Bench that an identical issue as is before me was before the Division Bench in the case of Koeleman India Pvt. Ltd. (supra). As such, I find that the issue is squarely covered in favour of the respondent by the decision of Division Bench, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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