1. This appeal arises out of the order-in-appeal No. 8/49-729/82M dated 7-7-1982 passed by the Collector of Customs (Appeal) Bombay by which he rejected the appellants claim and confirm the order-in-original bearing No. S/8-7-858/81M dated 6-2-1982 passed by the Assistant Collector of Customs, MCD by which rejected the appellants claim for refund holding that their claim does not fall either under Section 23(1) or under Section 13 of the Customs Act, 1962 (to be hereinafter referred to as the Act).
2. Feeling aggrieved by the order of the Appellate Collector the appellants filed a Revision Application before the Govt. of India which statutorily stood transferred under Section 31B of the Act to the Tribunal.
3. The facts necessary for the disposal of this appeal are in dispute.
The appellants imported 5000 kgs. of Nylon Moulding Powder in 5 pallets of 40 paper bags each. The out of charge order was passed in respect of all the five pallet on 8-5-1981. Prior to this on 6-5-1981 the appellants paid the requisite duty. Subsequently on 16-5-1981 a combined survey was held and this survey disclosed that one of the pallets contain only 6 bags instead of 40 bags. Thus there was shortage of 34 bags. The appellants, therefore, made an application for refund of proportionate duty paid by them. As stated earlier the Assistant Collector as well as the Collector (Appeals) rejected their claim.
4. Shri V.N. Desphpande learned Advocate for the appellants urged that the authorities below have considered the claim only under Section 13 of the Act and that they have failed to consider the claim under Section 23(1) of the Act. Shri Deshpande no doubt referred to the order-in-original where the Assistant Collector did make a casual observation as to the applicability of Section 23(1). Shri Deshpande submitted that the documentary evidence to which the Customs is a party namely the Examination report established beyond doubt that there was shortage of 34 bags when the goods were in the custody of the Port Trust authorities. By reason of the shortage physical delivery of those 34 bags became impossible and as such the appellants have become entitled to claim refund of proportionate duty. He therefore prayed that the orders passed by the authorities below may be set aside and refund may be ordered.
5. Shri Krishan Kumar for the Respondent Collector contended that since the out of charge order had been passed the appellant cannot claim refund under Section 13 of the Act. He also contended that Section 23 has no application since the evidence did not establish total destruction or loss, shri Krishan Kumar contended the loss to the party is not the 'loss' that is contemplated under Section 23.
6. Considered the submissions made on both sides. There is no dispute between the parties that the Customs examination held at the Docks established that one of the pallets which should have contained 40 bags contained only 6 bags and 34 bags were missing. The Assistant Collector who held the Customs examination in his report stated among other things there is no room to hold missing bags. This report not only establishes that 34 bags were missing but also establishes that there could have been pilferage of these 34 bags. Therefore, the only question that arises for consideration is whether the appellants could claim refund of proportionate duty in respect of 34 bags which were not delivered to them and which was found missing when they were in the custody of the Port Trust authorities.
7. In a series of cases this Bench has consistently held following the decision of the Delhi High Court in Sialkot 1979 (4) E.L.T. (J 329) (Del.) that the expression "lost or destroyed" is used in the generic and comprenhensive sense and includes the loss due to theft or pilferage. In other words it would include loss caused to the party.
Having regard to the said decisions I see no ground to take a view different from the view taken in those decision. Following the decisions of this Bench in earlier cases, I allow this appeal and direct the Customs authorities to grant consequential relief to the appellants within a period of 4 months from the date of communication of this order.