1. The revision application filed before the Government of India against the order in appeal bearing No. S/49-1395/81 M dated 11.3.82 passed by the Collector of Customs (Appeals) Bombay statutorily stood transferred to the Tribunal for being heard as an appeal.
2. The appellant's claim for refund of duty on shortshipped goods was rejected by the Assistant Collector, MCD as unsubstantiated for non production of no charge invoice, customs attested invoice, foreign suppliers confirmation letter and certain other documents. On appeal, the Collector (Appeals) rejected the appeal holding that the shortages were noticed after out of charge order was passed.
3. During the hearing of this appeal, Shri Mamoola submitted that after the physical clearance of the goods the importers checked the machinery and spare parts. Then they noticed 6 electrode cooling fans and plates were missing. Immediately, a telex message was sent to the suppliers and the suppliers confirmed shortshipment of the said items. The suppliers also supplied free of charge the short-shipped items and they were cleared on payment of duty. Shri Mamoola contended that in respect of the same items duty was paid twice. Therefore, their claim for refund of duty was justified and the authorities below were unjustified in rejecting the claim. He urged that as the conditions of the case outwardly were good they did not seek any survey at the time of taking delivery of the goods. On the above facts Shri Mamoola prayed that the orders of the authorities below may be set aside and there may be an order for refund of the duty paid on the short shipped goods.
4. After hearing Shri Mamoola, the departmental representative was not called upon to argue.
5. Admittedly, the goods were physically cleared from out of the Custom charge. The so called shortshipment was alleged to have been noticed in the consignee's premises. There was no contemporaneous documents to establish the shortshipment. The invoice originally filed did not contain details of the goods shipped. The appellants did not choose to produce packing specification. In the absence of the particulars of the goods shipped the contention that there was a short shipment cannot be accepted. Much reliance also cannot be placed on the subsequent supply by the suppliers of the alleged shortshipped goods. Strictly, the appellant's claim would not fall either under Section 13 or under Section 23, or even under Section 22 of the Act, which sections enable the appellants to claim refund. In the absence of contemporaneous evidence or convincing circumstances it is hazardous to rely on the evidence such as subsequent supply of the alleged shortshipped goods by the suppliers for the purpose of ordering refund of duty.
6. In the above view of the matter, this appeal fails and the same is rejected.