1. Appeal under Section 129A of the Customs Act, 1962 praying that in the circumstances stated therein the Tribunal will be pleased to order refund of duty of Rs. 12,417.55 on 91.235 MT of Muriate of Potash short-landed.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri M. Rajendran, employee of the appellants and upon hearing the arguments of Shri S. K. Choudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following : 3. This petition was filed before the Government of India on 20-3-79 against the Order-in-appeal No. C.25AP/91/1978 dated 18-9-78 passed by the Appellate Collector of Customs, Madras, rejecting their appeal for refund of duty against the Order No. Refund Claim 110/76-77 dated 16-3-78 of the Assistant Collector of Customs, Mangalore. By virtue of Sub-section (2) of Section 131-B of the Customs Act, 1962 this petition has been transferred to the Tribunal to be heard as an appeal.
4. The petitioners-appellant have sought refund of duty on 91.235 MT of Muriate of Potash alleged to have been short-received in an import of 6500 MT ex. m.v. CHLOE arrived at the New Mangalore Port on 12-1-77.
The Assistant Collector of Customs, Mangalore, rejected the claim on the basis of an outturn statement issued by the Traffic Manager, New Mangalore Port, stating that the vessel discharged her cargo in full.
He refused to accept the certificate from the same officer stating that 6453.400 MT of Muriate of Potash were cleared through the port. The Appellate Collector of Customs, Madras, rejected the appeal on substantially the same grounds. In the appeal before us, the same plea is pressed, namely that the weighment certificate issued by the Port Trust may be accepted as showing the quantity actually landed as distinct from the quantity cleared.
5. The case presents some unusual features and hence it would be useful to set out at length the procedure followed at the relevant time at the New Mangalore Port for the clearance of bulk cargo such as the one we are considering. The Port did not accept any responsibility for cargo handled in its wharves ; nor did it take custody of cargo. The Collector of Customs has also not approved any person for keeping custody of imported goods as envisaged under Section 45(1) of the Customs Act, 1962. In fact what has happened in the present case is that a Bill of Entry was filed for 6500 MT (being the Bill of Lading quantity) on 12-1-77. The Bill of Entry was assessed and the duty due was collected on 27-1-77. However, from 13-1-77 onwards officers of Customs had been allowing clearance of bagged cargo in lorries as and when the bags were unloaded from the ship ; in these orders for clearance for home consumption the officers had indicated the weight of the goods cleared as that indicated in the weighment certificates of the day issued by the Port. It may be noted that the Port collects its dues such as wharfage in respect of cargo and hence the need for weighment of the cargo as it was being cleared. The last order for clearance is dated 22-1-77 though the appellant claims that six lorries carrying 882 bags of the cargo weighing 43.407 MT net was cleared on 23-1-77. This is also verified from the Annexure A to the survey report No. JBB-MGR/98/98-76-77 dated 3-2-77 of J.B. Boda Marine & General Survey Agencies Private Ltd. Thus, it would be seen that part clearance was allowed by an officer of Customs prior to the payment of duty on the cargo, a procedure which is not in accord with the Section 47 of the Customs Act, 1962. It is in these circumstances that we have to decide whether the claim of the appellant is maintainable.
6. We have held in a number of cases that the quantity cleared from the Port Trust's custody cannot ipso facto be treated as evidence of the quantity landed into its custody. However, in this case as orders for clearance have been issued and that too only for a part of the consignment prior to the date of payment of duty, we have a situation where for the balance quantity there is in fact no order for clearance as envisaged under Section 47 of the Customs Act 1962. In terms of Section 13 of that Act, if there be non-availability of cargo to the party due to pilferage after its landing but before the proper officer has made an order for clearance for home consumption, the importer shall not be liable to pay the duty leviable on such goods. If, therefore, it is accepted that the goods cleared fell short of the quantity stated in the Bill of Entry by 91.235 MT, a fact which is attested by the New Mangalore Port itself, in terms of Section 13 of the Customs Act, 1962, the importer will have a good case for refund of the duty already paid by him.
7. The certificate issued by the Mangalore Port, a third party, states the quantity of cargo actually cleared. We see no reason to discard the same in the circumstances of the present case. We, therefore, allow the appeal and order refund of duty paid on a quantity of 91.235 MT of Muriate of Potash.