1. Appeal under Section 129 of the Customs Act, 1962, praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order of the lower authority and order refund of duty paid by the appellant.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri P. Swaminathan, employee of the appellant and upon hearing the arguments of Shri A. Vijayaraghavan, Departmental Representative for the respondent, the Tribunal makes the following Order : 3. This petition was filed before the Government of India against the order-in-appeal No. C3/2390/1976, dated 18-7-1977 of the Appellate Collector of Customs, Madras. By virtue of 5ection 131-B of the Customs Act, 1962, the petition has been transferred to this Tribunal to be heard as an appeal.
4. Out of four packages of diesel engine components imported by S.S.Donegal, shortages were discovered in two cases. The appellant claimed refund of duty paid on these two cases. The Deputy Collector of Customs, Madras, rejected this claim under his Order No. S.59/23B/7.5, dated 21-7-1976 observing that the importers did not produce the remaining packages for examination; in the absence of examination of these two packages, it cannot be ruled out that the shortage noticed in the cases referred to were not packed in the packages which were not produced for examination. When the matter was agitated in appeal before the Appellate Collector of Customs, Madras, he confirmed the order, substantially on the same grounds.
5. Before us it is claimed that there is no evidence to indicate that the shortages in the two packages - Nos. 1761 and 1843 - were in fact contained in the other two packages, Nos. 1762 and 1844. There is no basis for the inference drawn by the Deputy Collector/Appellate Collector. The Departmental Representative points out that an order for bonding one package No. 1843 had been passed prior to the date of examination of the package. Any claim on account of shortages in that package will not be allowable in terms of Section 13 of the Act. In respect of package No. 1761, he states that the packing list which was produced may not be acceptable as correct; the total number of units in all the four packages as indicated in the packing list is 11,700 whereas the invoice shows that quantity as 11,400. A closer examination of the documents show that the invoice is in respect of two packages each. The total number of units in respect of package Nos. 1761 and 1762 tallies with the quantum given in the invoice and the packing list. So, one could reasonably assume that the packing list is an acceptable document in respect of package No. 1761. The shortage in package No. 1761 was discovered before an order for warehousing was passed by the proper officer. We, therefore, allow the appeal in part and order that duty relatable to a shortage of 2,310 units as discovered in package No. 1761 be refunded to the appellant.