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Avery India Ltd. Vs. the Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Judge
Reported in(1983)LC1404DTri(Kol.)kata
AppellantAvery India Ltd.
RespondentThe Collector of Customs
Excerpt:
.....had gone out of customs charge and that there was no pre-clearance evidence to corroborate the claim of short-shipment.2. during the hearing before us today, the appellants stated that the consignment was landed and cleared in good order and since the outward condition of the packages was good, they did not expect any short-packing. the shortage came to their notice only after they opened the consignment in their factory and thereupon they called in the representative of the insurance company who conducted an insurance survey. they got in touch with the foreign supplier also, who after investigation at his end admitted the shortshipment and later made good the shortage free of cost.3. the weight of the short-shipped goods which arrived later was 1142 kgs. gross as compared to the.....
Judgment:
1. The appellants seek refund of Customs Duty paid in respect of certain goods which they claim were not shipped by the foreign supplier. Their claim was rejected by the Asstt. Collector and later by the Appellate Collector on the ground that the short-shipment was discovered after the consignment had gone out of customs charge and that there was no pre-clearance evidence to corroborate the claim of short-shipment.

2. During the hearing before us today, the appellants stated that the consignment was landed and cleared in good order and since the outward condition of the packages was good, they did not expect any short-packing. The shortage came to their notice only after they opened the consignment in their factory and thereupon they called in the representative of the Insurance Company who conducted an insurance survey. They got in touch with the foreign supplier also, who after investigation at his end admitted the shortshipment and later made good the shortage free of cost.

3. The weight of the short-shipped goods which arrived later was 1142 kgs. gross as compared to the weight of 1275 kgs. gross of their earlier consignment. This also showed, they maintained, that the short-shipped goods could not have been there in the earlier consignment. They added that Section 149 of the Customs Act 62, was not a bar to their claim for refund which ought to be considered only in terms of Section 27 of the said Act. They stated finally that the appellants were a reputed Company and could not be expected to have made a false claim.

4. The Department's representative stated that Section 149 barred amendment of value in the Bill of Entry after the goods have gone out of Customs charge. He added that all the evidence furnished by the appellants was post-clearance evidence and could not be relied upon.

5. We have carefully considered the matter. In matters like refund of revenue, one cannot go by subjective factors like the reputation of the claimant. Such matters have to be decided on the basis of certain objective criteria. Under Section 27 of the Customs Act '62, refund of duty can be sanctioned only if the Asstt. Collector of Customs is satisfied that such refund is due to the claimants The salutary norm which the Customs Authorities follow while considering claims for refund in respect of shortages, is that either the shortage should have been seen and verified by the Customs Officer or there should be contemporaneous documentary evidence in existence before importation and clearance of the goods, which should establish the fact of shortage. In the present case, no such evidence is available. The shortage itself was detected after the consignment was cleared out of Customs charge. All the documentary evidence furnished pertains to the period after clearance of the goods from the customs charge. The weight factor, mentioned by the appellants, cannot establish the fact of short-shipment. In the circumstances, we find no justification to interfere with the impugned order and reject this appeal.


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