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Mackinnon Forwarding Service Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1983)LC1411DTri(Kol.)kata
AppellantMackinnon Forwarding Service
RespondentCollector of Customs
Excerpt:
.....bill of entry no. di 626 dated 16-5-1973. only 24 bundles were discharged from the vessel and the port trust, calcutta, issued a short-landing certificate for 7 bundles, the duty on which was refunded, on a claim made by the appellants to the assistant collector of customs. out of the 24 bundles, 11 bundles were reportedly pilferred and a claim was raised with the assistant collector for refund of the countervailing duty paid by the above bill of entry. in a letter dated 1-12-1973, the appellants were asked to submit the port trust landing certificate; certificate under public notice no. 276 of 1964; customs declaration in terms of para 4 of the public notice no. 71 of 1964; and police report in original. the assistant collector was informed that the police authorities were not issuing.....
Judgment:
1. This is a revision application to the Government of India, arising out of the Order No. 1017/1976 dated 10-5-1976 passed by the Appellate Collector of Customs, Calcutta, which has been transferred to the Appellate Tribunal for disposal as if it were an appeal, in terms of the provisions of Section 131 B(2) of the Customs Act, 1962.

2. On a consignment of 31 bundles mild steel angles imported per s.s.

Miyatsura Maru, the appellants paid duty of Customs under Bill of Entry No. DI 626 dated 16-5-1973. Only 24 bundles were discharged from the vessel and the Port Trust, Calcutta, issued a short-landing certificate for 7 bundles, the duty on which was refunded, on a claim made by the appellants to the Assistant Collector of Customs. Out of the 24 bundles, 11 bundles were reportedly pilferred and a claim was raised with the Assistant Collector for refund of the countervailing duty paid by the above Bill of Entry. In a letter dated 1-12-1973, the appellants were asked to submit the Port Trust landing certificate; certificate under Public Notice No. 276 of 1964; Customs declaration in terms of para 4 of the Public Notice No. 71 of 1964; and Police Report in original. The Assistant Collector was informed that the Police Authorities were not issuing such reports and an extract of their letter was furnished to him. The Landing Condition Certificate and the declaration under Public Notice No. 71 of 1964 were sent to him. He was also informed that the Port Commissioners were not issuing any certificate under Public Notice No. 276 of 1964. In his order dated 19-9-1974, despatched on 19-12-1974, the refund claim was rejected by the Assistant Collector as unsubstantiated, since the documents called for in his letter of 1-12-1973 and subsequent reminders on 31-3-1973 and 12-8-1974 were not submitted. The Appellate Collector in the impugned order, found that no survey was held to determine the actual shortage and the appellants could not produce the copy of the Police Report and the result of the same. There was, therefore, no reliable evidence to ascertain the duty of pilferred goods and the contentions in the appeal were not tenable. He accordingly rejected the appeal as unsubstantiated.

3. Aggrieved by this order, the present appeal was filed. It has been contended that the Port Trust had reported pilferage and had endorsed the number of bundles cleared (13) on the duplicate copy of the Bill of Entry covering 24 bundles. There was no question of holding any survey in the absence of any bundles. The pilferage was detected by the Port Trust and reported to the Police Authorities. It is not the practice to furnish copy of their correspondence to the importers. The Dock Manager had not responded to the request to know the result of the Police Report. There is no doubt that 11 bundles were not delivered by the Port Trust and there is no substance in the contention that there was no reliable evidence to ascertain the quantity of pilferred goods.

4. We heard Shri S.N. Prasad, Executive Officer, for the appellants and Shri A.K. Chatterjee, J.D.R. for the respondent Collector.

Shri Prasad reiterated the contentions made in the written appeal and stated that whatever information was provided to the appellants by the Port Trust and Police Authorities had been supplied to the Department and they could have verified the pilferage from those authorities. All other documents required were supplied to the Department. The refund was admissible and it should have been granted to them. Shri Chatterjee, on the other hand, contended that the onus under Section 13 of the Customs Act, 1962 was on the appellants and no investigation by the Department was called for. Since they had failed to produce any proof that 11 bundles were actually pilferred, their claim for refund had been rightly rejected.

5. The Tribunal observes that under Section 45 the responsibility for custody of imported goods and their removal from the Customs area, vests in the Port Trust. The appellants had been repeatedly contending that H out of 24 bundles on which duty was paid had not been delivered by the Port Trust as they had been pilferred. Under Section 13, if any imported goods are pilferred before the proper officer has made an order for clearance, the importer is not liable to pay the duty leviable, except where such goods are restored to him after pilferage.

We are unable to appreciate the Department's contention that no enquiry was necessary either from the Port Trust or the Police Authorities, to verify the contentions of the appellants. It would not have been difficult at all to ascertain the correct position so that the claim could be decided one way or the other. We, therefore, now direct that necessary enquiries be made by the Assistant Collector with the Port Trust and Police Authorities in respect of the alleged pilferage and the refund claim be disposed of in accordance with law.


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