1. This is an appeal transferred to the Tribunal under Section 131-B of the Customs Act filed by Embarkation Hq. Bombay, requesting for refund of duty amounting to Rs. 15,367.20 paid on one case containing motor vehicle parts covered by Bill of entry C 6214 dated 27/28.2.78.' The reason for claiming the refund is that the case in question was not traced and hence it could not be cleared under the aforesaid Bill of entry. The appellants have now submitted a certificate under Section 43 of the Major Port Trusts Act, 1963 from Deputy Manager, Indira Dock, Bombay certifying that one case said to contain motor vehicle parts manifested at Item No. G-53 ex. s.s. State of Meghalay by IGM. No. 2614 of 23.2.78 was physically forwarded on 17.3.78 but was missing. The appellants, therefore, request for refund of duty paid on this case. - 2. The Senior departmental representative has opposed the submissions of the appellants. He has pointed out that the earlier claim of the appellants was for refund of duty under Section 27 of the Customs Act.
Now the-grounds for refund had been shifted to those under Section 13 or 23 ibid depending upon when the out of charge was given by the Customs. authorities. He has, further, submitted that since the duplicate Bill of entry was required to be surrendered to the Port Trust for obtaining the certificate, it has not been possible for him to confirm as to whether duty was paid prior to the out of charge order having been given by the Customs Officer. He has, further, explained that the appellants presented the Bill of entry under Note and Pass procedure and as per this procedure, the duty is paid and the out of charge order is given by the Accounts department in the Customs House and the importers then obtain the delivery pf the goods from the Customs Officers in the Docks. On the basis of the procedure followed in the present case, it is very likely that the pilferage of the goods was detected after the out of charge order was given by the Customs Officer. Therefore, the appellant's case fell under Section 13 and therefore in the aforesaid circumstances, refund is not admissible to them. The Sr. departmental representative has, therefore, submitted that the appeal be dismissed.
3. We have examined the submissions on both the sides. On the basis of the certificate dated 2.8.83 issued by the Deputy Manager Indira Dock Bombay, the case is covered under Section 13 and not under Section 23 *as the goods have been pilferred after landing and they have not been lost or destroyed as envisaged under Section 23. Under Section 13, the importer is not liable to pay duty leviable on the goods, if they are stolen after landing and before the Customs officer given an order for their clearance. But in ths present case, the duty had already been paid and therefore, its refund has to be covered under Section 27 ibid provided the same is Admissible. In the present case, the Bill of entry was passed under the special procedure applicable to Government imports which stipulates payment, of duty and giving out of charge order later.
Therefore, in terms of Section 13, the pilferage has come to notice only after the Custom Officer has given out of charge order for the consignment in question. Therefore, the refund of duty is not admissible in the present case. Accordingly, we find that there is no merit in the contentions of the appellant. The appeal is, therefore, dismissed.