TMI Blog1977 (9) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... a claim for refund of the duty paid on the pilferred consignment and the Assistant Collector by order dated 1st November, 1965 noticed that the refund of duty had been claimed as one of the cases was found empty in the docks. But, he held that the remission of duty on shortages claimed under Section 13 of the Customs Act, 1962 (called the Act) was admissible provided the claim for remission of duty was made in writing before the out of charge order was given by the Customs and since no such claim was made by the importers before the out of charge order was given, the claim for refund of duty could not be entertained. On appeal, the Collector of Customs maintained the same order and observed that since the pilferage had not taken place before the proper officer had made an order for clearance and as such the claim was inadmissible under Section 13 of the said Act. 3. It appears that the claim as originally filed was made under Section 13 but in revision before the Government, it was claimed that the refund was permissible under Section 23 of the Act. The Government, however by the impugned order found that the provisions of Section 23(1) of the Act were not attracted. Fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, if the goods are at that stage found pilferred, the law provides that the importer will not be liable to pay the duty on the same. This provision deals with only pilferage of the goods and does not specify the loss or destruction. The reason for it is obvious. If the goods have already been lost or destroyed, no bill of lading is likely to be filed in their respect, which will be filed only if the goods are in existence and are tendered for assessment. Should it be found that after the unloading, they have been pilferred, then relief is granted under this section but before the order for clearance for home consumption has been passed. But what happens after such an order ? 6. Mr. Bhatia, learned counsel for the petitioner, does not place any reliance on Section 13 of the Act although the same had been relied upon before the Customs authorities a the initial stages. At the stage of revision, it is Section 23 which was sought to support the claim and has been repelled by the Government. Mr. Bhatia claims that the order of the Government is illegal and refund ought to have been allowed under Section 23. 7. An analysis of section 23 shows that this comes into pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, deprivation or 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. 11. The Supreme Court in East West Steamship Co. v. S.R. Ramalingam Chettiar , AIR 1960 SC 1068, constructing the provisions of Carriage of Goods by Sea Act, 1925 Schedule, Art. III, Paragraph 6, clause 3, had construed the word `loss'. That clause provided that "in any event the carrier and the shipper shall be discharged from all liability in respect of loss or damages unless a suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered." The arguments advanced was that the loss or damages must be limited to the loss or damage to the goods themselves and if the goods had not been delivered and had thus been lost to the party, this kind of loss was not covered by the expression. This contention was rejected and it was held that the expression dealt with all cases of loss or damage whether the loss or damage was caused by the deterioration of the goods or was caused by the non-delivery of the goods and that it included any loss or dam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... died and the intention of the legislature in enacting the provision. 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 be the reason. Since cases of total loss or destruction cause considerable hardship, a generic approach is being made. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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